[40 Pa.B. 5767]
[Saturday, October 9, 2010]
[Continued from previous Web Page]
Subchapter B. PERMIT APPLICATION AND SPECIAL NPDES PROGRAM REQUIREMENTS Sec.
92a.21. Application for a permit. 92a.22. Signatories to permit applications and reports. 92a.23. NOI for coverage under an NPDES general permit. 92a.24. New or increased discharges, or change of waste streams. 92a.25. Incomplete applications or incomplete NOIs. 92a.26. Application fees. 92a.27. Sewage discharges. 92a.28. Industrial waste discharges. 92a.29. CAFO. 92a.30. CAAP. 92a.31. Aquaculture projects. 92a.32. Stormwater discharges. 92a.33. Silviculture activities. 92a.34. Cooling water intake structures. 92a.35. New sources and new discharges. 92a.36. Department action on NPDES permit applications. § 92a.21. Application for a permit.
(a) The provisions of 40 CFR 122.21(b), (g)(1)—(7), (9)—(13), (h), (i), (j), (k), (l), (m)(1) and (6), (p), (q) and (r) (relating to application for a permit (applicable to State programs, see § 123.25)) are incorporated by reference.
(b) Duty to apply. Persons wishing to discharge pollutants shall file a complete application for an individual permit at least 180 days before the date on which it is desired to commence the discharge of pollutants or within another period of time that the Department determines is sufficient to ensure compliance with the Federal Act and the State Act, including applicable water quality standards and effluent limitations or standards.
(c) Application forms. Applicants for permits shall submit applications on Department permit application forms. At a minimum, the following are required to be submitted by applicants for a permit, except as otherwise specified:
(1) One original and two copies of the complete application. The Department may require additional copies, if needed to complete the review process.
(2) The applicable permit application fee and other fees as set forth in § 92a.26 (relating to application fees).
(3) If required by the application, proof that a written notice of an application has been submitted to the municipality and county in which the activity is or will be located at least 30 days before the Department may take action on the application. This notice must satisfy the notification requirements of section 1905-A of The Administrative Code of 1929 (71 P. S. § 510-5) and the Pennsylvania Municipalities Planning Code (53 P. S. §§ 10101—11107) if required.
(4) If required by the application, proof that public notice of the application has been published in a newspaper of general circulation in the locality in which the activity is or will be located once a week during a consecutive 4-week period.
(5) A description of the activities conducted by the applicant that require an NPDES permit; name, mailing address and location of the facility; up to four standard industrial codes (SIC) or North American Industry Classification System (NAICS) code that best reflect the principal products or services provided by the facility; the operator's name, address, telephone number, ownership status and entity status; a listing of all Department and EPA environmental quality permits for the facility; a topographic or other map extending 1 mile beyond the boundaries of the facility or activity; and a brief description of the nature of the business.
(6) Documentation that the applicant is in compliance with all existing Department permits, regulations, orders and schedules of compliance, or that any noncompliance with an existing permit has been resolved by an appropriate compliance action or by the terms and conditions of the permit (including a compliance schedule set forth in the permit) consistent with § 92a.51 (relating to schedules of compliance) and other applicable Department regulations.
(d) Additional information. The Department may require other information or data needed to assess the discharges from the facility and any impact on receiving waters, and to determine whether to issue an NPDES permit, or what conditions or effluent limitations (including water quality based effluent limitations) to place in the permit. The additional information may include, but is not limited to:
(1) The results of an effluent assessment (or estimate for new dischargers or new sources), including a list of the mass and concentration of pollutants found (or estimated to be for new discharges or new sources) in the wastewater discharge, under Department protocols.
(2) Information and data relating to the biological, physical and chemical characteristics of waters and habitat immediately upstream and downstream of the proposed discharge, performed under a Department-approved protocol.
(3) The results of a waterbody assessment, under Department protocols, setting forth the impact (or potential impact) of the discharges on surface waters of this Commonwealth.
(4) The results of whole effluent toxicity testing, an instream cause/effect survey, or other tests or surveys as needed to determine the impact of a discharge on a waterbody performed under a Department-approved protocol.
(e) Addresses. The Department will publish at least annually a list of addresses to which applications and their accompanying papers shall be submitted.
(f) Supporting documentation. A person required to file an application shall also file additional modules, forms and applications, and supply data as specified by the Department. Additional modules, forms, applications and data are considered a part of the application.
§ 92a.23. NOI for coverage under an NPDES general permit.
(a) Except as provided for in subsection (c), eligible dischargers, who wish to be covered by a general permit, shall file a complete NOI as instructed in the NOI. At a minimum, the NOI must identify each point source for which coverage under the general permit is requested; demonstrate that each point source meets the eligibility requirements for inclusion in the general permit; demonstrate that the discharge from the point sources, individually or cumulatively, will not cause or contribute to a violation of an applicable water quality standard established under Chapter 93 (relating to water quality standards) and include other information the Department may require. By signing the NOI, the discharger agrees to accept all conditions and limitations imposed by the general permit.
(b) If the NOI is acceptable, the Department will process the NOI in accordance with § 92a.54 (relating to general permits).
(c) General permits for POTWs, CSOs, CAFOs, MS4s, primary industrial facilities, and stormwater discharges associated with industrial activities must require that an NOI be submitted for each issuance and reissuance of coverage under the general permit. A general permit for any other category of discharges may be designed to allow discharges to be authorized to discharge without submitting a NOI for coverage under the general permit. Alternatively, such a general permit may require an initial NOI for issuance of coverage, but no subsequent NOI for reissuance of coverage. The Department will consider the following in deciding whether an NOI must be submitted for coverage under the general permit: the type of discharge; the potential for toxic and conventional pollutants in the discharge; the estimated number of discharges to be covered by the permit and the cumulative impact of the discharges. The public notice of the general permit will provide the reasons for not requiring the NOI.
§ 92a.24. New or increased discharges, or change of waste streams.
(a) Sewage discharges and industrial waste discharges. Facility expansions, production increases, process modifications, or any change of wastestream, that may result in an increase of pollutants that have the potential to exceed ELGs or violate effluent limitations specified in the permit, or that may result in a new discharge, or a discharge of new or increased pollutants for which no effluent limitation has been issued, must be approved in writing by the Department before the permittee may commence the new or increased discharge, or change of wastestream. The Department will determine if a permittee will be required to submit a new permit application and obtain a new or amended permit before commencing the new or increased discharge, or change of wastestream.
(b) Stormwater discharges associated with construction activity. The permittee shall notify the Department before initiating any new or expanded disturbed area not identified in the permit application. The Department will determine if a permittee will be required to submit a new permit application and obtain a new or amended permit before the permittee may initiate construction activity in the new or expanded disturbed area.
§ 92a.25. Incomplete applications or incomplete NOIs.
The Department will not process an application or NOI that is incomplete or otherwise deficient. An application for an NPDES individual permit is complete when the Department receives an application form and supplemental information completed in accordance with this chapter and the instructions with the application. An NOI to be covered by an NPDES general permit issued by the Department is complete when the Department receives an NOI setting forth the information specified in the NOI and by the terms of the general permit.
§ 92a.26. Application fees.
(a) The application fee is payable to the Clean Water Fund according to the fee schedule set forth in this section. All flows listed in this section are annual average design flows.
(b) Applications fees for individual NPDES permits for discharges of treated sewage are:
SRSTP $100 for new; $100 for reissuance Small flow treatment facility $250 for new; $250 for reissuance Minor facility < 50,000 GPD $500 for new; $250 for reissuance Minor facility > = 50,000 GPD < 1 MGD $1,000 for new; $500 for reissuance Minor facility with CSO $1,500 for new; $750 for reissuance Major facility > = 1 MGD
< 5 MGD$2,500 for new; $1,250 for reissuance Major facility > = 5 MGD $5,000 for new; $2,500 for reissuance Major facility with CSO $10,000 for new; $5,000 for reissuance (c) Applications fees for individual NPDES permits for discharges of industrial waste are:
Minor facility not covered by an ELG $1,000 for new; $500 for reissuance Minor facility covered by an ELG $3,000 for new; $1,500 for reissuance Major facility < 250 MGD $10,000 for new; $5,000 for reissuance Major facility > = 250 MGD $50,000 for new; $25,000 for reissuance Mining activity $1,000 for new; $500 for reissuance Stormwater $2,000 for new; $1,000 for reissuance (d) Application fees for individual NPDES permits for other facilities or activities are:
CAFO $1,500 for new; $750 for reissuance CAAP $1,500 for new; $750 for reissuance MS4 $5,000 for new; $2,500 for reissuance (e) Application fees for transfers of individual permits are:
SRSTP $50 Small flow treatment facility $100 Other domestic wastewater $200 Industrial waste $500 (f) Application fees for amendments to individual permits are:
Amendment initiated by Department No charge Minor amendment $200 Major amendment Same as reissuance permit fee (g) NOI fees for coverage under a general permit under § 92a.23 (relating to NOI for coverage under an NPDES general permit) will be established in the general permit. NOI fees may not exceed $2,500, except as provided in Chapter 102 (relating to erosion and sediment control). An eligible person shall submit to the Department the applicable NOI fee before the Department approves coverage under the general permit for that person.
(h) 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 increase fees to eliminate the disparity, including recommendations for regulatory amendments to increase program fees.
(i) Any Federal or State agency or independent state commission that provides funding to the Department for the implementation of the NPDES program through terms and conditions of a mutual agreement may be exempt from the fees in this section.
§ 92a.27. Sewage discharges.
(a) The following additional application requirements apply to new and existing sewage dischargers (including POTWs and privately owned treatment works), as applicable:
(1) The following sewage dischargers shall provide the results of whole effluent toxicity testing to the Department:
(i) Sewage dischargers with design influent flows equal to or greater than 1.0 million gallons per day.
(ii) Sewage dischargers with approved pretreatment programs or who are required to develop a pretreatment program.
(2) In addition to the sewage dischargers in paragraph (1), the Department may require other sewage dischargers to submit the results of toxicity tests with their permit applications, based on consideration of the following factors:
(i) The variability of the pollutants or pollutant parameters in the sewage effluent (based on chemical-specific information, the type of treatment facility and types of industrial contributors).
(ii) The dilution of the effluent in the receiving water (ratio of effluent flow to receiving stream flow).
(iii) Existing controls on point or nonpoint sources, including calculations of TMDLs for the waterbody segment, and the relative contribution of the sewage discharger.
(iv) Receiving surface water characteristics, including possible or known water quality impairment, and whether the sewage discharges to an estuary, one of the Great Lakes or a surface water that is classified as a High Quality Water or an Exceptional Value Water under Chapter 93 (relating to water quality standards).
(v) Other considerations including, but not limited to, the history of toxic impact and compliance problems at the sewage discharge facility, which the Department determines could cause or contribute to adverse water quality impacts.
(3) For sewage dischargers required under paragraph (1) or (2) to conduct toxicity testing, the EPA's methods or other protocols approved by the Department, which are scientifically defensible and sufficiently sensitive to detect aquatic toxicity and approved by the Department, shall be used. The testing shall have been performed since the last NPDES permit reissuance, or when requested by the Department, whichever occurred later.
(b) CSO dischargers shall submit the following information:
(1) The results of an evaluation determining the frequency, extent and cause of the CSO discharge, including identifying the points of inflow into combined systems.
(2) An evaluation of the water quality impacts of the CSO discharge on receiving waters.
(3) A description of the nine minimum controls (NMCs) described in the EPA publication entitled ''Combined Sewer Overflows—Guidance for Nine Minimum Controls'' (EPA publication number 832-B-95-003 (September 1995) as amended or updated) used at the facility to minimize or eliminate the CSO discharge impact on receiving water quality.
(4) A long-term control plan (LTCP) to minimize or eliminate the CSO discharge with an implementation schedule.
(5) An update on the progress made with the implementation of the LTCP and future activities with schedules to comply with water quality standards.
§ 92a.28. Industrial waste discharges.
(a) Existing industrial discharges. Dischargers of industrial waste from sources other than new sources or new discharges subject to subsection (b), nonprocess wastewater discharges subject to subsection (c) and stormwater discharges associated with industrial activity subject to § 92a.32 (relating to stormwater discharges), shall submit the applicable information required to be submitted under 40 CFR 122.21(g)(1)—(7) and (g)(9)—(13) (relating to application for a permit (applicable to State programs, see § 123.25)).
(b) New sources and new discharges. Except for new discharges of industrial facilities that discharge nonprocess wastewater subject to subsection (c) and new discharges of stormwater associated with industrial activity subject to § 92a.32, new discharges and new sources applying for NPDES permits shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(k).
(c) Nonprocess industrial waste discharges. Except for stormwater discharges associated with industrial activity subject to § 92a.32, industrial waste dischargers applying for NPDES permits that discharge only nonprocess wastewater not regulated by an effluent limitation guideline or new source performance standard shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(h).
§ 92a.29. CAFO.
(a) Except as provided in subsections (b)—(d), each CAFO shall have applied for an NPDES permit on the following schedule, and shall have obtained a permit:
(1) By May 18, 2001, for any CAFO in existence on November 18, 2000, with greater than 1,000 AEUs.
(2) By February 28, 2002, for any other CAFO in existence on November 18, 2000.
(3) Prior to beginning operation, for any new or expanded CAFO that began operation after November 18, 2000, and before October 22, 2005.
(b) A poultry operation that is a CAFO, which is in existence on October 22, 2005, and that is not using liquid manure handling systems, shall apply for an NPDES permit no later than the following, and shall obtain a permit:
(1) By April 24, 2006, for operations with 500 or more AEUs.
(2) By January 22, 2007, for all other operations.
(c) After October 22, 2005, a new operation, and an existing operation that will become a CAFO due to changes in operations such as additional animals or loss of land suitable for manure application, shall do the following:
(1) Apply for an NPDES permit at least 180 days before the operation commences or changes.
(2) Obtain an NPDES permit prior to commencing operations or making changes, as applicable.
(d) Other operations not described in subsections (a)—(c) that will become newly regulated as a CAFO for the first time due to the changes in the definition of a CAFO in § 92a.2 (relating to definitions) shall apply for a permit by April 24, 2006, and obtain a permit.
(e) The NPDES permit application requirements include, but are not limited to, the following:
(1) A nutrient management plan meeting the requirements of Chapter 83, Subchapter D (relating to nutrient management) and approved by the county conservation district or the State Conservation Commission. The plan must include:
(i) Manure application setbacks for the CAFO of at least 100 feet, or vegetated buffers at least 35 feet in width.
(ii) A statement that manure that is stockpiled for 15 consecutive days or longer shall be under cover or otherwise stored to prevent discharge to surface water during a storm event up to and including the appropriate design storm for that type of operation under § 91.36(a)(1) and (5) (relating to pollution control and prevention at agricultural operations).
(2) An erosion and sediment control plan meeting the requirements of Chapter 102 (relating to erosion and sediment control).
(3) When required under § 91.36(a), a water quality management permit, permit application, approval or engineer's certification, as required.
(4) A preparedness, prevention and contingency plan for pollutants related to the CAFO operation.
(5) A water quality management permit application as required under this chapter and Chapter 91 (relating to general provisions), when treatment facilities that would include a treated wastewater discharge are proposed.
(6) Measures to be taken to prevent discharge to surface water from storage of raw materials such as feed and supplies. These measures may be included in the nutrient management plan.
§ 92a.30. CAAP.
The provisions of 40 CFR 122.24 (relating to concentrated aquatic animal production facilities (applicable to State NPDES programs, see § 123.25)) are incorporated by reference.
§ 92a.31. Aquaculture projects.
The provisions of 40 CFR 122.25, 125.10 and 125.11 (relating to aquaculture projects (applicable to State NPDES programs, see 123.25); and criteria for issuance of permits to aquaculture projects) are incorporated by reference.
§ 92a.32. Stormwater discharges.
(a) The provisions of 40 CFR 122.26(a), (b), (c)(1), (d), (e)(1), (3)—(9) and (f)—(g) (relating to storm water discharges (applicable to State NPDES programs, see § 123.25)) and 122.30—122.37 are incorporated by reference.
(b) No exposure stormwater discharges. Discharges composed entirely of stormwater are not stormwater discharges associated with industrial activity if there is ''no exposure'' of industrial materials and activities to stormwater and the discharger satisfies the conditions in 40 CFR 122.26(g). A facility or activity with no stormwater discharges associated with industrial activity may qualify for a conditional exclusion from a permit, provided that the facility or activity does not discharge to a surface water classified as a High Quality Water or an Exceptional Value Water under Chapter 93 (relating to water quality standards). To qualify for the conditional exclusion from a permit, the responsible person shall complete, sign and submit to the Department a ''No Exposure Certification'' at least once every 5 years in lieu of a permit application.
(c) Municipal separate storm sewer systems. The operator of a discharge from a large, medium or small municipal separate storm sewer shall submit in its application the information required to be submitted under 40 CFR Part 122 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System). Permits for discharges from municipal separate storm sewer systems are not eligible for a ''no exposure'' conditional exclusion from a permit under subsection (b).
(d) Stormwater discharges associated with construction activity. Applicants for individual NPDES permits for the discharge of stormwater associated with construction activity shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(g)(7) (relating to application for a permit (applicable to State programs, see § 123.25)) and 122.26(c)(1). In addition, stormwater dischargers shall submit information required in Chapter 102 (relating to erosion and sediment control) as appropriate. Permits for stormwater discharges associated with construction activity are not eligible for a ''no exposure'' conditional exclusion from a permit under subsection (b).
(e) Stormwater discharges associated with industrial activity. Applicants for individual NPDES permits for the discharge of stormwater associated with industrial activity shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(g)(7) and 122.26(c)(1).
§ 92a.33. Silviculture activities.
The provisions of 40 CFR 122.27 (relating to silvicultural activities (applicable to State NPDES programs, see § 123.25)) are incorporated by reference.
§ 92a.34. Cooling water intake structures.
(a) The provisions of 40 CFR 125.80—125.89 (relating to requirements applicable to cooling water intake structures for new facilities under section 316(b) of the Act) are incorporated by reference.
(b) The location, design, construction and capacity of cooling water intake structures, in connection with a point source, must reflect the BTA for minimizing adverse environmental impacts in accordance with the State Act and section 316(b) of the Federal Act (33 U.S.C.A. § 1326(b)).
§ 92a.35. New sources and new discharges.
The provisions of 40 CFR 122.29 (relating to new sources and new dischargers) are incorporated by reference.
§ 92a.36. Department action on NPDES permit applications.
The Department will not issue an NPDES permit unless the application is complete and the documentation submitted meets the requirements of this chapter. The applicant, through the application and its supporting documentation, shall demonstrate that the application is consistent with:
(1) Plans approved by the Department under the Pennsylvania Sewage Facilities Act (35 P. S. §§ 750.1—750.20), wastewater facility capabilities, service areas, selected alternatives and any adverse effects on the environment of reasonably foreseeable future development within the area of the project resulting from construction of the wastewater facility.
(2) Other applicable environmental laws and regulations administered by the Commonwealth, Federal environmental statutes and regulations, and if applicable, river basin commission requirements created by interstate compact.
(3) Standards established for the wastewater facilities through permits to implement the requirements of 40 CFR Parts 122, 123, 124 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System; State program requirements; and procedures for decisionmaking) and the Federal Act.
Subchapter C. PERMITS AND PERMIT CONDITIONS Sec.
92a.41. Conditions applicable to all permits. 92a.42. Additional conditions applicable to specific categories of NPDES permits. 92a.43. Establishing permit conditions. 92a.44. Establishing limitations, standards, and other permit condi tions. 92a.45. Calculating NPDES permit conditions. 92a.46. Site-specific permit conditions. 92a.47. Sewage permit. 92a.48. Industrial waste permit. 92a.49. CAFO. 92a.50. CAAP. 92a.51. Schedules of compliance. 92a.52. Variances. 92a.53. Documentation of permit conditions. 92a.54. General permits. 92a.55. Disposal of pollutants into wells, into POTW or by land application. § 92a.41. Conditions applicable to all permits.
(a) Unless indicated otherwise in this section, NPDES permits must include the permit conditions specified in 40 CFR 122.41(a)—(m) (relating to conditions applicable to all permits (applicable to State programs, see § 123.25))including the following:
(1) Duty to comply.
(2) Duty to reapply.
(3) Need to halt or reduce activity not a defense.
(4) Duty to mitigate.
(5) Proper operation and maintenance.
(6) Permit actions.
(7) Property rights.
(8) Duty to provide information.
(9) Inspection and entry.
(10) Monitoring and records.
(11) Signature requirements.
(12) Reporting requirements.
(13) Bypass.
(b) The permittee shall comply with the immediate oral notification requirements of § 91.33 (relating to incidents causing or threatening pollution). Oral notification is required as soon as possible, but no later than 4 hours after the permittee becomes aware of the incident causing or threatening pollution. A written submission shall also be provided within 5 days of the time the permittee becomes aware of the incident causing or threatening pollution. The written submission must conform to the requirements of 40 CFR 122.41(l)(6).
(c) The discharger may not discharge floating materials, scum, sheen, or substances that result in deposits in the receiving water. Except as provided for in the permit, the discharger may not discharge foam, oil, grease, or substances that produce an observable change in the color, taste, odor or turbidity of the receiving water.
§ 92a.47. Sewage permit.
(a) Sewage, except that discharged from a CSO that is in compliance with subsection (b), or as provided for in subsections (f)—(i), shall be given a minimum of secondary treatment. Secondary treatment for sewage is that treatment that includes significant biological treatment and accomplishes the following:
(1) Monthly average discharge limitation for BOD5 and TSS may not exceed 30 milligrams per liter. If CBOD5 is specified instead of BOD5 the limitation may not exceed 25 milligrams per liter.
(2) Weekly average discharge limitation for BOD5 and TSS may not exceed 45 milligrams per liter for POTW facilities. If CBOD5 is specified instead of BOD5 the limitation may not exceed 40 milligrams per liter.
(3) On a concentration basis, the monthly average percent removal of BOD5 or CBOD5, and TSS, must be at least 85% for POTW facilities.
(4) From May through September, a monthly average discharge limitation for fecal coliform of 200/100 mL as a geometric mean and an instantaneous maximum effluent limitation not greater than 1,000/100 mL.
(5) From October through April, a monthly average discharge limitation for fecal coliform of 2,000/100 mL as a geometric mean and an instantaneous maximum effluent limitation not greater than 10,000/100 mL.
(6) Provision for the disposal or beneficial use of sludge in accordance with applicable Department regulations.
(7) Compliance with § 95.2(1) and (2) (relating to effluent standards for industrial waste).
(8) Compliance with § 92a.48 (b) (relating to industrial waste permit) if chlorine is used.
(b) Dischargers of sewage from a CSO shall implement, as approved by the Department, nine minimum controls (NMCs) and a long-term control plan (LTCP) to minimize or eliminate the CSO discharge impact on the water quality of the receiving surface water.
(c) Discharges from an SSO are prohibited.
(d) When pollutants contributed by indirect dischargers result in interference or pass through, and a violation is likely to recur, a permittee shall develop and implement specific local limits for indirect dischargers and other users, as appropriate, that together with appropriate sewerage facility or operational changes, are necessary to ensure renewed or continued compliance with the plant's NPDES permit or sludge use or disposal practices.
(e) POTWs that serve indirect dischargers shall give notice to the Department in accordance with 40 CFR 122.42(b) (relating to additional conditions applicable to specific categories of NPDES permits (applicable to State NPDES programs, see § 123.25)).
(f) POTWs with effluent limits that are less stringent than those specified in subsection (a)(1) and (2) in effect on October 9, 2010, shall meet the requirements of subsection (a)(1) and (2) when a new or amended water quality management permit authorizing an increase in the design flow of the facility is issued under the provisions of Chapter 91 (relating to general provisions).
(g) POTWs subject to this section may not be capable of meeting the percentage removal requirements established under subsection (a)(3) during wet weather, where the treatment works receive flows from combined sewers (that is, sewers which are designed to transport both storm water and sanitary sewage). For those treatment works, the decision must be made on a case-by-case basis as to whether any attainable percentage removal level can be defined, and if so, what the level should be.
(h) POTWs subject to this section may not be capable of meeting the percentage removal requirements established under subsection (a)(3) during dry weather, where the treatment works receive flows from combined sewers. The Department may substitute less stringent removal requirements than that specified in subsection (a)(3) for any POTW with less concentrated influent wastewater for combined sewers during dry weather. The Department may substitute either a lower percent removal requirement or a mass loading limit for the percent removal requirements specified in subsection (a)(3) provided that the permittee satisfactorily demonstrates all of the following:
(1) The treatment works is consistently meeting, or will consistently meet, its permit effluent concentration limits, but the percent removal requirements cannot be met due to less concentrated influent wastewater.
(2) To meet the percent removal requirements, the treatment works would have to achieve significantly more stringent effluent concentrations than would otherwise be required by the concentration-based standards.
(3) The less concentrated influent wastewater does not result from either excessive infiltration or clear water indirect dischargers during dry weather periods. The determination of whether the less concentrated wastewater results from excessive infiltration is discussed in 40 CFR 35.2005(b)(28) (relating to definitions), plus the additional criterion that either 40 gallons per capita per day or 1,500 gallons per inch diameter per mile of sewer may be used as the threshold value for that portion of the dry weather base flow attributed to infiltration. If the less concentrated influent wastewater is the result of clear water indirect dischargers, the treatment works must control these discharges pursuant to 40 CFR Part 403 (relating to general pretreatment regulations for existing and new sources of pollution).
(i) The Department may substitute less stringent removal requirements than that specified in subsection (a)(3) for any POTW with less concentrated influent wastewater for separate sewers, provided that the permittee satisfactorily demonstrates all of the following:
(1) The treatment works is consistently meeting, or will consistently meet, its permit effluent concentration limits but its percent removal requirements cannot be met due to less concentrated influent wastewater.
(2) To meet the percent removal requirements, the treatment works would have to achieve significantly more stringent limitations than would otherwise be required by the concentration-based standards.
(3) The less concentrated influent wastewater is not the result of excessive inflow/infiltration. The determination of whether the less concentrated wastewater is the result of excessive inflow/infiltration will be based on the definition of excessive inflow/infiltration in 40 CFR 35.2005(b)(16), plus the additional criterion that inflow is nonexcessive if the total flow to the POTW (that is, wastewater plus inflow plus infiltration) is less than 275 gallons per capita per day.
§ 92a.48. Industrial waste permit.
(a) Industrial waste regulated by this chapter must meet the following requirements:
(1) EPA-promulgated effluent limitation guidelines established under section 304(b) of the Federal Act (33 U.S.C.A. § 1314(b)).
(2) Compliance with § 95.2 (relating to effluent standards for industrial waste).
(3) For those industrial categories for which no effluent limitations have been established under paragraph (1), Department-developed technology-based limitations established in accordance with 40 CFR 125.3 (relating to technology-based treatment requirements in permits).
(b) For facilities or activities using chlorination, the following apply:
(1) If the EPA adopts a National categorical ELG promulgating limits for Total Residual Chlorine (TRC) or free available chlorine for a specific industry or activity under section 301 or 304(b) of the Federal Act (33 U.S.C.A. §§ 1311 and 1314(b)), that ELG constitutes BAT for the industry or activity. If the EPA has not promulgated a National ELG for TRC or free available chlorine for an industry or activity, the Department may develop a facility-specific BAT effluent limitation for TRC. Factors, which will be considered in developing a facility-specific BAT effluent limitation, include the following:
(i) The age of equipment and facilities involved.
(ii) The engineering aspects of the application of various types of control techniques and alternatives to the use of chlorine or reductions in the volume of chlorine used during the disinfection process.
(iii) The cost of achieving the effluent reduction.
(iv) Nonwater quality environmental impacts (including energy requirements).
(v) Other factors the Department deems appropriate.
(2) For facilities where the EPA has not promulgated a National ELG setting forth limits for TRC or free available chlorine for an industry or activity, and the Department has not developed a facility-specific BAT effluent limitation for TRC under the factors in paragraph (1), an effluent limitation for TRC of 0.5 milligrams per liter (30-day average) constitutes BAT.
(3) Facilities using chlorination that discharge to an Exceptional Value Water, or to a High Quality Water where economic or social justification under § 93.4c(b) (1)(iii) (relating to implementation of antidegradation requirements) has not been demonstrated under applicable State or Federal law or regulations, shall discontinue chlorination or dechlorinate their effluents prior to discharge into the waters.
§ 92a.50. CAAP.
(a) Each discharger shall prepare and implement a BMP plan that addresses:
(1) Solids and excess feed management and removal.
(2) Proper facility operation and maintenance.
(3) Nonnative species loss prevention.
(4) Facility personnel training.
(5) Removal, handling and disposal/utilization of bio-residual solids (sludge).
(b) Permittees shall report any investigational/therapeutic drugs usage as follows:
(1) For investigational/new drugs, the permittee shall provide the Department with an oral notification within 7 days of initiating application of the drug, and a New Drug Usage Report shall be filed monthly.
(2) Changes in or increases in usage rates shall be reported to the Department through both oral notification and written report on the Drug Usage Report Form, quarterly.
(c) Products or chemicals that contain any carcinogenic ingredients are prohibited, except that limited use of those chemicals may be permitted provided that the permittee shall:
(1) Thoroughly investigate the use of alternative chemicals.
(2) Demonstrate that no suitable alternatives are available.
(3) Demonstrate through sampling or calculation that any carcinogen in the proposed chemical will not be detectable in the final effluent, using the EPA-approved analytic method for wastewater analysis with the lowest published detection limits.
§ 92a.51. Schedules of compliance.
(a) With respect to an existing discharge that is not in compliance with the water quality standards and effluent limitations or standards in § 92a.44 or § 92a.12 (relating to establishing limitations, standards, and other permit conditions; and treatment requirements), the applicant shall be required in the permit to take specific steps to remedy a violation of the standards and limitations in accordance with a legally applicable schedule of compliance, in the shortest, reasonable period of time, the period to be consistent with the Federal Act. Any schedule of compliance specified in the permit must require compliance with final enforceable effluent limitations as soon as practicable, but in no case longer than 5 years, unless a court of competent jurisdiction issues an order allowing a longer time for compliance.
(b) If the period of time for compliance specified in subsection (a) exceeds 1 year, a schedule of compliance will be specified in the permit that will set forth interim requirements and the dates for their achievement. If the time necessary for completion of the interim requirement such as the construction of a treatment facility is more than 1 year and is not readily divided into stages for completion, interim dates will be specified for the submission of reports of progress towards completion of the interim requirement. The time between interim dates may not exceed 1 year. For each NPDES permit schedule of compliance, interim dates and the final date for compliance must, to the extent practicable, fall on the last day of the months of March, June, September and December.
(c) Either before or up to 14 days following each interim date and the final date of compliance, the permittee shall provide the Department with written notice of the permittee's compliance or noncompliance with the interim or final requirement.
§ 92a.54. General permits.
(a) Coverage and purpose. The Department may issue a general permit, in lieu of issuing individual permits, for a clearly and specifically described category of point source discharges, if the point sources meet the following conditions:
(1) Involve the same, or substantially similar, types of operations.
(2) Discharge the same types of wastes.
(3) Require the same effluent limitations or operating conditions, or both.
(4) Require the same or similar monitoring.
(5) Do not discharge toxic or hazardous pollutants as defined in sections 307 and 311 of the Federal Act (33 U.S.C.A. §§ 1317 and 1321) or any other substance that—because of its quantity; concentration; or physical, chemical or infectious characteristics—may cause or contribute to an increase in mortality or morbidity in either an individual or the total population, or pose a substantial present or future hazard to human health or the environment when discharged into surface waters.
(6) Are more appropriately controlled under a general permit than under individual permits, in the opinion of the Department.
(7) Individually and cumulatively do not have the potential to cause or contribute to a violation of an applicable water quality standard established under Chapter 93 (relating to water quality standards) or cause significant adverse environmental impact.
(8) Do not discharge to a surface water classified as a High Quality Water or an Exceptional Value Water under Chapter 93.
(b) Administration of general permits. General permits may be issued, amended, suspended, revoked, reissued or terminated under this chapter. Issuance of a general permit does not exempt a person from compliance with this title. General permits have a fixed term not to exceed 5 years.
(c) Department specification. The Department may specify in the general permit that an eligible person who has submitted a timely and complete NOI is authorized to discharge in accordance with the terms of the permit under one of the following:
(1) Immediately upon submission of the NOI.
(2) After a waiting period following receipt of the NOI by the Department as specified in the general permit.
(3) Upon receipt of notification of approval of coverage under a general permit from the Department.
(d) Department notification. The Department will, as applicable, notify a discharger that it is or is not covered by a general permit. A discharger so notified may request an individual permit.
(e) Denial of coverage. The Department will deny coverage under a general permit when one or more of the following conditions exist:
(1) The discharge, individually or in combination with other similar discharges, is or has the potential to be a contributor of pollution, as defined in the State Act, which is more appropriately controlled under an individual permit.
(2) The discharger is not, or will not be, in compliance with any one or more of the conditions of the general permit.
(3) The applicant has failed and continues to fail to comply or has shown a lack of ability or intention to comply with a regulation, permit, schedule of compliance or order issued by the Department.
(4) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source.
(5) Categorical point source effluent limitations are promulgated by the EPA for those point sources covered by the general permit.
(6) The discharge is not, or will not, result in compliance with an applicable effluent limitation or water quality standard.
(7) Other point sources at the facility require issuance of an individual permit, and issuance of both an individual and a general permit for the facility would constitute an undue administrative burden on the Department.
(8) The Department determines that the action is necessary for any other reason to ensure compliance with the Federal Act, the State Act or this title.
(9) The discharge would be to a surface water classified as a High Quality Water or an Exceptional Value Water under Chapter 93.
(f) Requiring an individual permit. The Department may revoke or terminate coverage under a general permit, and require the point source discharger to apply for and obtain an individual permit for any of the reasons in subsection (e). An interested person may petition the Department to take action under this subsection. Upon notification by the Department under this subsection that an individual permit is required for a point source, the discharger shall submit a complete NPDES application, in conformance with this chapter, within 90 days of receipt of the notification, unless the discharger is already in possession of a valid individual permit. Failure to submit the application within 90 days will result in automatic termination of coverage of the applicable point sources under the general permit. Timely submission of a complete application will result in continuation of coverage of the applicable point sources under the general permit, until the Department takes final action on the pending individual permit application.
(g) Action of the Department. Action of the Department denying coverage under a general permit under subsection (e), or requiring an individual permit under subsection (f), is not a final action of the Department until the discharger submits and the Department takes final action on an individual permit application.
(h) Termination of general permit. When an individual permit is issued for a point source that is covered under a general permit, the applicability of the general permit to that point source is automatically terminated on the effective date of the individual permit.
(i) Coverage under general permit. A point source excluded from a general permit solely because it already has an individual permit may submit an NOI under § 92a.23 (relating to NOI for coverage under an NPDES general permit). If the NOI is acceptable, the Department will revoke the individual permit and notify the source that it is covered under the general permit.
Subchapter D. MONITORING AND ANNUAL FEES Sec.
92a.61. Monitoring. 92a.62. Annual fees. § 92a.61. Monitoring.
(a) The provisions of 40 CFR 122.48 (relating to requirements for recording and reporting of monitoring results (applicable to State programs, see § 123.25)) are incorporated by reference.
(b) The Department may impose reasonable monitoring requirements on any discharge, including monitoring of the surface water intake and discharge of a facility or activity, other operational parameters that may affect effluent quality, and of surface waters adjacent to or associated with the intake or discharge flow of a facility or activity. The Department may require submission of data related to the monitoring.
(c) Each person who discharges pollutants may be required to monitor and report all toxic, conventional, nonconventional and other pollutants in its discharge, at least once a year, and on a more frequent basis if required by a permit condition. The monitoring requirements will be specified in the permit.
(d) Except for stormwater discharges subject to the requirements of subsection (h), a discharge authorized by an NPDES permit for a facility that is not a minor facility or contains toxic pollutants for which an effluent standard has been established by the Administrator under section 307(a) of the Federal Act (33 U.S.C.A. § 1317(a)) shall be monitored by the permittee for at least the following:
(1) Flow (in GPD or MGD).
(2) Pollutants (either directly or indirectly through the use of accepted correlation coefficients or equivalent measurements) that are subject to abatement under the terms and conditions of the permit.
(3) Pollutants that the Department finds, on the basis of information available to it, could have an impact on the quality of this Commonwealth's waters or the quality of waters in other states.
(4) Pollutants specified by the Administrator in regulations issued under the Federal Act as subject to monitoring.
(5) Pollutants in addition to those in paragraphs (2)—(4) that the Administrator requests in writing to be monitored.
(e) Each effluent flow or pollutant required to be monitored under subsections (c) and (d) shall be monitored at intervals sufficiently frequent to yield data that reasonably characterize the nature of the discharge of the monitored effluent flow or pollutant. Variable effluent flows and pollutant levels shall be monitored at more frequent intervals than relatively constant effluent flows and pollutant levels that may be monitored at less frequent intervals.
(f) The permittee shall maintain records of the information resulting from any monitoring activities required of it in its NPDES permit as follows:
(1) Records of monitoring activities and results must include for all samples:
(i) The date, exact place and time of sampling.
(ii) The dates analyses were performed.
(iii) Who performed the analyses.
(iv) The analytical techniques/methods used.
(v) The results of the analyses.
(2) The permittee shall also be required to retain for a minimum of 3 years any records of monitoring activities and results including all original strip chart recordings for continuous monitoring instrumentation and calibration and maintenance records. This period of retention may be extended during the course of any unresolved litigation regarding the discharge of pollutants by the permittee or when requested by the Department or the Administrator.
(g) The permittee shall periodically report, at a frequency of at least once per year, using a format or process established by the Department, results obtained by a permittee pursuant to monitoring requirements. In addition to these results, the Department may require submission of other information regarding monitoring results it determines to be necessary.
(h) Requirements to report monitoring results from stormwater discharges associated with industrial activity, except those subject to an effluent limitation guideline or an NPDES general permit, will be established in a case-by-case basis with a frequency dependent on the nature and effect of the discharge.
(i) The monitoring requirements under this section must be consistent with any National monitoring, recording and reporting requirements specified by the Administrator in regulations issued under the Federal Act.
(j) The Department may require that the permittee perform additional sampling for limited periods for the purpose of TMDL development, or for other reasons that the Department determines are appropriate.
§ 92a.62. Annual fees.
(a) Permittees shall pay an annual fee to the Clean Water Fund. The annual fee must be for the amount indicated in the following schedule and is due on each anniversary of the effective date of the permit. The flows listed in this section are annual average design flows.
(b) Annual fees for individual NPDES permits for discharges of treated sewage are:
SRSTP $0 Small flow treatment facility $0 Minor facility < 50,000 GPD $250 Minor facility > = 50,000 GPD < 1 MGD $500 Minor facility with CSO $750 Major facility > = 1 MGD < 5 MGD $1,250 Major facility > = 5 MGD $2,500 Major facility with CSO $5,000 (c) Annual fees for individual NPDES permits for discharges of industrial waste are:
Minor facility not covered by an ELG $500 Minor facility covered by an ELG $1,500 Major facility < 250 MGD $5,000 Major facility > = 250 MGD $25,000 Mining activity $0 Stormwater $1,000 (d) Annual fees for individual NPDES permits for other facilities or activities are:
CAFO $0 CAAP $0 MS4 $500 (e) 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 increase fees to eliminate the disparity, including recommendations for regulatory amendments to increase program fees.
(f) Any Federal or State agency or independent state commission that provides funding to the Department for the implementation of the NPDES Program through terms and conditions of a mutual agreement may be exempt from the fees in this section.
Subchapter E. TRANSFER, MODIFICATION, REVOCATION AND REISSUANCE, TERMINATION OF PERMITS, REISSUANCE OF EXPIRING PERMITS AND CESSATION OF DISCHARGE Sec.
92a.71. Transfer of permits. 92a.72. Modification or revocation and reissuance of permits. 92a.73. Minor modification of permits. 92a.74. Termination of permits. 92a.75. Reissuance of expiring permits. 92a.76. Cessation of discharge. § 92a.75. Reissuance of expiring permits.
(a) A permittee who wishes to continue to discharge after the expiration date of its NPDES permit shall submit an application for reissuance of the permit at least 180 days prior to the expiration of the permit unless permission has been granted for a later date by the Department. The application fees specified in § 92a.26 (relating to application fees) apply.
(b) Upon completing review of the application, the Department may reissue a permit if, based on up-to-date information on the permittee's wastewater treatment practices and the nature, contents and frequency of the permittee's discharge, the Department determines that:
(1) The permittee is in compliance with existing Department-issued permits, regulations, orders and schedules of compliance, or that any noncompliance with an existing permit has been resolved by an appropriate compliance action.
(2) The discharge is, or will be under a compliance schedule issued under § 92a.51 (relating to schedules of compliance) and other applicable regulations, consistent with the applicable water quality standards, effluent limitations or standards and other legally applicable requirements established under this title, including revisions or modifications of the standards, limitations and requirements that may have occurred during the term of the existing permit.
Subchapter F. PUBLIC PARTICIPATION Sec.
92a.81. Public access to information. 92a.82. Public notice of permit applications and draft permits. 92a.83. Public notice of public hearing. 92a.84. Public notice of general permits. 92a.85. Notice to other government agencies. 92a.86. Notice of issuance or final action on a permit. 92a.87. Notice of reissuance of permits. 92a.88. Notice of appeal. § 92a.84. Public notice of general permits.
(a) Public notice of every proposed general permit will be published in the Pennsylvania Bulletin. The contents of the public notice will include at least the following:
(1) The name, address and phone number of the agency issuing the public notice.
(2) A clear and specific description of the category of point source discharges eligible for coverage under the proposed general permit.
(3) A brief description of the reasons for the Department's determination that the category of point source discharges is eligible for coverage under a general permit in accordance with these standards.
(4) A brief description of the terms and conditions of the proposed general permit, including applicable effluent limitations, BMPs and special conditions.
(5) A brief description of the procedures for making the final determinations, and other means by which interested persons may influence or comment on those determinations.
(6) The address and phone number of the Commonwealth agency at which interested persons may obtain further information and a copy of the proposed general permit.
(7) The NOI fee for coverage under the general permit.
(b) There will be a 30-day period following publication of notice during which written comments may be submitted by interested persons before the Department makes its final determinations. Written comments submitted during the 30-day comment period will be retained by the Department and considered in making the final determinations. The period for comment may be extended at the discretion of the Department for one additional 15-day period. The Department will provide an opportunity for any interested person or group of persons, any affected State, any affected interstate agency, the Administrator or any interested agency, to request or petition for a public hearing with respect to the proposed general permit. The request or petition for public hearing, which must be filed within the 30-day period allowed for filing of written comments, must indicate the interest of the party filing the request and the reasons why a hearing is warranted. A hearing will be held if there is a significant public interest, including the filing of requests or petitions for the hearing.
(c) Upon issuance of a general permit, the Department will place a notice in the Pennsylvania Bulletin of the availability of the general permit. The notice of availability will indicate one of the following:
(1) An NOI is not required for coverage under the general permit.
(2) A notice will be published in the Pennsylvania Bulletin of each NOI under an applicable general permit, and of each approval for coverage under a general permit.
(3) A notice will be published in the Pennsylvania Bulletin of every approval of coverage only.
§ 92a.85. Notice to other government agencies.
(a) The provisions of 40 CFR 124.59 (relating to conditions requested by the Corps of Engineers and other government agencies) are incorporated by reference.
(b) The Department will do the following:
(1) Provide a subscription to the Pennsylvania Bulletin for any other states whose waters may be affected by the issuance of an NPDES permit, to any interstate agency having water quality control authority over water that may be affected by the issuance of an NPDES permit, and to all Pennsylvania District Engineers of the Army Corps of Engineers.
(2) At the time of issuance of public notice under § 92a.82 (relating to public notice of permit applications and draft permits), transmit to other states, whose waters may be affected by the issuance of an NPDES permit, a copy of fact sheets prepared under § 92a.53 (relating to documentation of permit conditions). Upon request, the Department will provide the states with a copy of the application and a copy of the draft permit. Each affected state will be afforded an opportunity to submit written recommendations to the Department and the Administrator. The Department will consider these comments during preparation of the permit decision. If the Department decides not to incorporate any written recommendations thus received, it will provide a written explanation of its reasons for deciding not to accept any of the written recommendations.
(3) At the time of issuance of public notice under § 92a.82, transmit to any interstate agency having water quality control authority over waters that may be affected by the issuance of a permit a copy of fact sheets prepared under § 92a.53. Upon request, the Department will provide the interstate agency with a copy of the application and a copy of the draft permit. The interstate agency shall have the same opportunity to submit recommendations and to receive explanations in paragraph (2).
§ 92a.87. Notice of reissuance of permits.
Notice of reissuance of permits will be accomplished as specified in §§ 92a.81—92a.83, 92a.85 and 92a.86 for any draft individual permit.
[Pa.B. Doc. No. 10-1926. Filed for public inspection October 8, 2010, 9:00 a.m.]
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