[40 Pa.B. 847]
[Saturday, February 13, 2010]
[Continued from previous Web Page]
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 92. (RESERVED) (Editor's Note: As part of this proposed rulemaking, the EQB is proposing to rescind Chapter 92 which appears in 25 Pa. Code pages 92-1—92-54, serial pages (271955), (271956), (315447)—(315454), (324877), (324878), (315457)—(315462), (324879)—(324882), (271977), (271978), (336593), (336594), (271981)—(271984), (313603), (313606), (271989)—(271992), (313607), (313608), (343929)—(343932) and (271999)—(272008).)
Sec. 92.1. (Reserved) 92.2. (Reserved) 92.2a—92.2d. (Reserved) 92.3—92.5. (Reserved) 92.5a. (Reserved) 92.6. (Reserved) 92.7. (Reserved) 92.8a. (Reserved) 92.9. (Reserved) 92.11. (Reserved) 92.13. (Reserved) 92.13a. (Reserved) 92.15. (Reserved) 92.17. (Reverved) 92.21. (Reserved) 92.21a. (Reserved) 92.22. (Reserved) 92.23. (Reserved) 92.25. (Reserved) 92.31. (Reserved) 92.41. (Reserved) 92.51. (Reserved) 92.52a. (Reserved) 92.53. (Reserved) 92.55. (Reserved) 92.57. (Reserved) 92.59. (Reserved) 92.61. (Reserved) 92.63. (Reserved) 92.65. (Reserved) 92.67. (Reserved) 92.71. (Reserved) 92.71a. (Reserved) 92.72a. (Reserved) 92.73. (Reserved) 92.75. (Reserved) 92.77—92.79. (Reserved) 92.81—92.83. (Reserved) 92.91—92.94. (Reserved)
CHAPTER 92a. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITTING, MONITORING AND COMPLIANCE Subchap.
Sec.A. DEFINITIONS AND GENERAL PROGRAM
REQUIREMENTS. 92a.1B. PERMIT APPLICATION AND SPECIAL
NPDES PROGRAM REQUIREMENTS 92a.21C. PERMITS AND PERMIT CONDITIONS 92a.41
D. MONITORING AND ANNUAL FEES 92a.61
E. TRANSFER, MODIFICATION,
REVOCATION AND REISSUANCE,
TERMINATION OF PERMITS,
REISSUANCE OF EXPIRING
PERMITS AND CESSATION
OF DISCHARGE 92a.71F. PUBLIC PARTICIPATION 92a.81
G. PERMIT COORDINATION WITH
THE ADMINISTRATOR 92a.91H. CIVIL PENALTIES FOR
VIOLATIONS OF NPDES PERMITS 92a.101
Subchapter A. DEFINITIONS AND GENERAL PROGRAM REQUIREMENTS Sec.
92a.1. Purpose and scope. 92a.2. Definitions. 92a.3. Incorporation of Federal regulations by reference. 92a.4. Exclusions. 92a.5. Prohibitions. 92a.6. Effect of a permit. 92a.7. Duration of permits and continuation of expiring
permits.92a.8. Confidentiality of information. 92a.9. NPDES permit satisfies other permit requirements. 92a.10. Pollution prevention. 92a.11. Other chapters applicable. 92a.12. Treatment requirements. § 92a.1. Purpose and scope.
(a) Purpose. The regulatory provisions contained in this chapter implement the NPDES Program by the Department under the Federal Act.
(b) Scope. A person may not discharge pollutants from a point source into surface waters except as authorized under an NPDES permit.
§ 92a.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
AEU—Animal Equivalent Unit—One thousand pounds live weight of livestock or poultry animals, regardless of the actual number of individual animals comprising the unit, as defined in 3 Pa.C.S. § 503 (relating to definitions).
Administrator—The Administrator of the EPA or an authorized representative.
Agricultural operation—The management and use of farming resources for the production of crops, livestock or poultry as defined in 3 Pa.C.S. § 503.
Agricultural process wastewater—Wastewater from agricultural operations, including from spillage or overflow from livestock or poultry watering systems; washing, cleaning or flushing pens, milkhouses, barns, manure pits; direct contact swimming, washing or spray cooling of livestock or poultry; egg washing; or dust control.
Applicable effluent limitations or standards—State, interstate and Federal effluent limitations or standards to which a discharge is subject under the State and Federal Acts, including, but not limited to, water quality-based and technology-based effluent limitations, standards of performance, toxic effluent standards and prohibitions, BMPs and pretreatment standards.
Applicable water quality standards—Water quality standards to which a discharge is subject under the State and Federal Acts, and regulations promulgated thereunder.
Application—The Department's form for applying for approval to discharge pollutants to surface waters of this Commonwealth under a new NPDES permit, or reissuance of an existing NPDES permit, or the modification or transfer of an existing NPDES permit.
Aquaculture project—A defined managed water area which uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater, estuarine, or marine plants and animals.
Authority—A body politic and corporate created under 53 Pa.C.S. Chapter 56 (relating to municipal authorities act).
BAT—Best Available Technology Economically Achievable—
(i) The maximum degree of effluent reduction attainable through the application of the best treatment technology economically achievable within an industrial category or subcategory, or other category of discharger.
(ii) The term includes categorical ELGs promulgated by the EPA under section 304(b) of the Federal Act (33 U.S.C.A § 1314(b)).
BOD5—Biochemical oxygen demand, 5-day—The 5-day measure of the pollutant parameter biochemical oxygen demand.
BMP—Best Management Practices—
(i) Schedules of activities, prohibitions of practices, maintenance procedures and other management practices to prevent or reduce pollutant loading to surface waters of this Commonwealth.
(ii) The term includes treatment requirements, operating procedures and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.
(iii) The term includes riparian buffers, soil and slope stabilization measures, control of fertilization practices, and other actions and measures designed to reduce erosion and runoff of soil, sediment and pollutants from the land surface during precipitation events; or to reduce the contamination of groundwater with pollutants that may affect surface waters.
(iv) The term includes BMP measures developed under this title to reduce pollutant loading to surface waters.
BTA—Best Technology Available—The combination of technologies and operational practices that achieves the most effective degree of impingement mortality and entrainment reduction applicable to the facility.
CAAP—Concentrated Aquatic Animal Production Facility—A hatchery, fish farm or other facility which meets the criteria in 40 CFR 122.24 (relating to concentrated aquatic animal production facilities (applicable to State NPDES programs, see 123.25)).
CAFO—Concentrated Animal Feeding Operation—A CAO with greater than 300 AEUs, any agricultural operation with greater than 1,000 AEUs, or any agricultural operation defined as a large CAFO under 40 CFR 122.23(b)(4) (relating to concentrated animal feeding operations (applicable to State NPDES programs, see 123.25)).
CAO—Concentrated Animal Operation—An agricultural operation that meets the criteria established by the State Conservation Commission in regulations under the authority of 3 Pa.C.S. Chapter 5 (relating to nutrient management and odor management) in Chapter 83, Subchapter D (relating to nutrient management).
CBOD5—Carbonaceous biochemical oxygen demand, 5-day—The 5 day measure of the pollutant parameter carbonaceous biochemical oxygen demand.
CSO—Combined Sewer Overflow—Any intermittent overflow or other untreated discharge from a municipal combined sewer system (including domestic, industrial and commercial wastewater and stormwater) prior to reaching the headworks of the sewage treatment facility which results from a flow in excess of the dry weather carrying capacity of the system.
Combined sewer system—A sewer system that has been designed to serve as both a sanitary sewer and a storm sewer.
Conventional pollutant—Biochemical oxygen demand, carbonaceous biochemical oxygen demand, suspended solids, pH, fecal coliform, oil or grease.
DMR—Discharge Monitoring Report—The Department or EPA supplied forms for reporting of self-monitoring results by the permittee.
Daily discharge—The discharge of a pollutant measured during a calendar day or any 24-hour period that reasonably and accurately represents the calendar day for purposes of sampling:
(i) For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day.
(ii) For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day.
Discharge—An addition of any pollutant to surface waters of this Commonwealth from a point source.
Disturbed area—As defined in Chapter 102 (relating to erosion and sediment control).
Draft permit—A document prepared by the Department indicating the Department's tentative decision to issue or deny, modify, revoke or reissue a permit.
ELG—Effluent Limitations Guideline—A regulation published by the Administrator under section 304(b) of the Federal Act, or by the Department, to revise or adopt effluent limitations.
Earth disturbance activity—As defined in Chapter 102.
Effluent limitation or standard—A restriction established by the Department or the Administrator on quantities, rates and concentrations of chemical, physical, biological and other constituents which are discharged from point sources into surface waters, including BMPs and schedules of compliance.
Entrainment—The incorporation of all life stages of fish and shellfish with intake flow entering and passing through a cooling water intake structure and into a cooling water intake system.
Existing discharge—A discharge that is not a new discharge or a new source.
Expanding facility or activity—Any expansion, modification, process change, or other change to an existing facility or activity which will result in an increased discharge of wastewater flow, or an increased loading of pollutants.
Facility or activity—Any NPDES point source or any other facility or activity including land or appurtenances thereto that is subject to regulation under the NPDES Program.
Federal Act—The Federal Water Pollution Control Act (33 U.S.C.A. §§ 1251—1387) also known as the Clean Water Act or CWA.
GPD—Gallons per day.
Immediate—As soon as possible, but not to exceed 4 hours.
Impingement—The entrapment of all life stages of fish and shellfish on the outer part of the intake structure or against a screening device during periods of intake water withdrawal
Indirect discharger—A discharger of nondomestic wastewater introducing pollutants into a POTW or other treatment works.
Industrial waste—
(i) A liquid, gaseous, radioactive, solid or other substance, not sewage, resulting from manufacturing or industry, or from an establishment, and mine drainage, refuse, silt, coal mine solids, rock, debris, dirt and clay from coal mines, coal collieries, breakers or other coal processing operations.
(ii) The term includes all of these substances whether or not generally characterized as waste.
Instantaneous maximum effluent limitation—The highest allowable discharge of a concentration or mass of a substance at any one time as measured by a grab sample.
Intermittent stream—A body of water flowing in a channel or bed composed primarily of substrates associated with flowing water, which, during periods of the year, is below the local water table and obtains its flow from both surface runoff and groundwater discharges.
Interstate agency—An agency of two or more states established by or under an agreement or compact, or any other agency of two or more states, having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator.
Large municipal separate storm sewer system—A municipal separate storm sewer system as defined in 40 CFR 122.26(b)(4) (relating to stormwater discharges (applicable to State NPDES programs, see 123.25)).
Livestock—
(i) Animals raised, stabled, fed or maintained on an agricultural operation with the purpose of generating income or providing work, recreation or transportation. Examples include: dairy cows, beef cattle, goats, sheep, swine and horses.
(ii) The term does not include aquatic species.
MGD—Million gallons per day.
MS4—Municipal Separate Storm Sewer System—A municipal separate storm sewer system.
Major amendment—Any amendment to an NPDES permit that is not a minor amendment.
Major facility—A POTW with a design flow of 1.0 MGD or more and any other facility classified as such by the Department in conjunction with the Administrator.
Manure—
(i) Animal excrement, including poultry litter, which is produced at an agricultural operation.
(ii) The term includes materials such as bedding and raw materials which are commingled with that excrement.
Medium municipal separate storm sewer system—A municipal separate storm sewer system as defined in 40 CFR 122.26(b)(7).
Mining activity—A surface or underground mining activity as defined in Chapter 77 or Chapter 86 (relating to noncoal mining; and surface and underground coal mining: general).
Minor amendment—An amendment to an NPDES permit to correct a typographical error, increase monitoring requirements, change interim compliance dates by no more than 120 days, delete an outfall, change a construction schedule for a discharger that is a new source, or to incorporate an approved pretreatment program into an existing permit.
Minor facility—A facility not identified as a major facility.
Monthly average discharge limitation—The highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during the calendar month divided by the number of daily discharges measured during the month.
Municipal separate storm sewer system—A separate storm sewer (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels or storm drains) which is all of the following:
(i) Owned or operated by a state, city, town, borough, county, district, association or other public body (created by or under State law) having jurisdiction over disposal of sewage, industrial wastes, stormwater or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or a designated and approved management agency under section 208 of the Federal Act (33 U.S.C.A. § 1288) that discharges to surface waters of this Commonwealth.
(ii) Designed or used for collecting or conveying stormwater.
(iii) Not a combined sewer.
(iv) Not part of a POTW.
Municipality—A city, town, borough, county, township, school district, institution, authority or other public body created by or pursuant to State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes.
NOI—Notice Of Intent—A complete form submitted for NPDES general permit coverage which contains information required by the terms of the permit and by § 92a.54 (relating to general permits). An NOI is not an application.
NPDES—National Pollutant Discharge Elimination System.
NPDES form—An issued NPDES permit, the application, NOI or any DMR reporting form.
NPDES general permit or general permit—An NPDES permit that is issued for a clearly described category of point source discharges, when those discharges are substantially similar in nature and do not have the potential to cause significant adverse environmental impact.
NPDES permit—An authorization, license, or equivalent control document issued by the Administrator or the Department to implement the requirements of 40 CFR Parts 122—124 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System; state program requirements; and procedures for decision making) and the Federal Act.
New discharger—A building, structure, facility, activity or installation from which there is or may be a discharge of pollutants that did not commence the discharge at a particular site prior to August 13, 1979, which is not a new source, and which has never received a final effective NPDES permit for discharges at that site.
New source—A building, structure, facility, activity or installation from which there is or may be a discharge of pollutants, the construction of which commenced after promulgation of standards of performance under section 306 of the Federal Act (33 U.S.C.A. § 1316) which are applicable to the source.
No exposure—Where industrial materials and activities are protected by a storm-resistant shelter to prevent exposure to stormwater. Industrial materials and activities include, but are not limited to, material handling equipment or activities, industrial machinery, raw materials, intermediate products, by-products, final products, or waste products. Material handling activities include the storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product or waste product.
Nonconventional pollutant—A pollutant which is not a conventional or toxic pollutant.
Nonpoint source—A pollutant source that is not a point source.
POTWs—Publicly Owned Treatment Works—
(i) A treatment works which is owned by a state or municipality.
(ii) The term includes any devices and systems used in the storage, treatment, recycling and reclamation of municipal sewage or industrial wastes of a liquid nature.
(iii) The term also includes sewers, pipes or other conveyances if they convey wastewater to a POTW treatment plant.
(iv) The term also means the municipality as defined in section 502(4) of the Federal Act (33 U.S.C.A. § 1362(4)), which has jurisdiction over the indirect discharges to and the discharges from such a treatment works.
Perennial stream—A body of water flowing in a channel or bed composed primarily of substrates associated with flowing waters and capable, in the absence of pollution or other manmade stream disturbances, of supporting a benthic macroinvertebrate community which is composed of two or more recognizable taxonomic groups of organisms which are large enough to be seen by the unaided eye and can be retained by a United States Standard No. 30 sieve (28 meshs per inch, 0.595 mm openings) and live at least part of their life cycles within or upon available substrates in a body of water or water transport system.
Permit-by-rule—An NPDES permit which a person is deemed to have for the operation of an SRSTP or for the application of pesticides upon compliance with the requirements of § 92a.24 or § 92a.25 (relating to permit-by-rule for SRSTPs; and permit-by-rule for application of pesticides), as applicable.
Person—Any individual, public or private corporation, partnership, association, municipality or political subdivision of this Commonwealth, institution, authority, firm, trust, estate, receiver, guardian, personal representative, successor, joint venture, joint stock company, fiduciary; department, agency or instrumentality of State, Federal or local government, or an agent or employee thereof; or any other legal entity.
Point source—Any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, CAAP, CAFO, landfill leachate collection system, or vessel or other floating craft, from which pollutants are or may be discharged.
Pollutant—Any contaminant or other alteration of the physical, chemical, biological or radiological integrity of surface water that causes or has the potential to cause pollution as defined in section 1 of the State Act (35 P. S. § 691.1).
Pollution prevention—Source reduction and other practices that reduce or eliminate the creation of pollutants through increased efficiency in the use of raw materials, energy, water or other resources, without having significant cross-media impacts.
Privately owned treatment works—Any device or system used to treat wastewater that is not a POTW.
Process wastewater—Water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct or waste product.
SRSTP—Single Residence Sewage Treatment Plant—A system of piping, tanks or other facilities serving a single family residence located on a single family residential lot, that solely collects, treats, and disposes of direct or indirect sewage discharges from the residence into surface waters of this Commonwealth.
SSO—Sanitary Sewer Overflow—An overflow of wastewater, or other untreated discharge from a separate sanitary sewer system (which is not a combined sewer system), which results from a flow in excess of the carrying capacity of the system or from some other cause prior to reaching the headworks of the sewage treatment facility.
Schedule of compliance—A schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with effluent limitations, prohibitions, other limitations or standards.
Separate storm sewer—A conveyance or system of conveyances (including pipes, conduits, ditches and channels) primarily used for collecting and conveying stormwater runoff.
Setback—A specified distance from the top of the bank of surface waters, or potential conduits to surface waters, where manure and agricultural process wastewater may not be land applied. Examples of conduits to surface waters include, but are not limited to:
(i) Open tile line intake structures.
(ii) Sinkholes.
(iii) Agricultural wellheads.
Sewage—Any substance that contains any of the waste products or excrementitious or other discharge from the bodies of human beings or animals.
Significant biological treatment—The use of an aerobic or anaerobic biological treatment process in a treatment works to consistently achieve a 30-day average of at least 65% removal of BOD5.
Small flow treatment facility—A treatment works designed to adequately treat sewage flows of not greater than 2,000 gallons per day for final disposal using a stream discharge or other methods approved by the Department.
Small municipal separate storm sewer system—A municipal separate storm sewer system as defined in 40 CFR 122.26(b)(16)—(18).
State Act—The Clean Streams Law (35 P. S. §§ 691.1—691.1001).
Stormwater—Runoff from precipitation, snow melt runoff and surface runoff and drainage.
Stormwater discharge associated with construction activity—The discharge or potential discharge of stormwater from construction activities, including clearing and grubbing, grading and excavation activities involving:
(i) Equal to or greater than 1 acre and less than 5 acres (0.4 to 2 hectares) of earth disturbance with a point source discharge to surface waters of this Commonwealth, or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves equal to or greater than 1 to less than 5 acres (0.4 to 2 hectares) of earth disturbance with a point source discharge to surface waters of this Commonwealth over the life of the project
(ii) Five acres (2 hectares) or more of earth disturbance, or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves 5 acres (2 hectares) or more of earth disturbance over the life of the project. .
Stormwater discharge associated with industrial activity—The discharge from any conveyance that is used for collecting and conveying stormwater and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant, and as defined in 40 CFR 122.26(b)(14).
Surface waters—Perennial and intermittent streams, rivers, lakes, reservoirs, ponds, wetlands, springs, natural seeps and estuaries, excluding water at facilities approved for wastewater treatment such as wastewater treatment impoundments, cooling water ponds and constructed wetlands used as part of a wastewater treatment process.
TMDL—Total Maximum Daily Load—The sum of individual waste load allocations for point sources, load allocations for nonpoint sources and natural quality and a margin of safety expressed in terms of mass per time, toxicity or other appropriate measures.
TSS—Total Suspended Solids—The pollutant parameter total suspended solids.
Toxic pollutant—Those pollutants, or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, may, on the basis of information available to the Administrator or the Department, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction, or physical deformations in these organisms or their offspring.
Treatment works—Any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature to implement the State and Federal Acts, or necessary to recycle or reuse water at the most economical cost over the estimated life of the works, including intercepting sewers, outfall sewers, sewage collection systems, pumping, power, and other equipment, and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any works, including site acquisition of the land that will be an integral part of the treatment process (including land used for the storage of treated wastewater in land treatment systems prior to land application) or is used for ultimate disposal of residues resulting from the treatment.
Vegetated buffer—A permanent strip of dense perennial vegetation established parallel to the contours of and perpendicular to the dominant slope of the field for purposes that include slowing water runoff, enhancing water infiltration and minimizing the risk of any potential pollutants from leaving the field and reaching surface waters.
WETT—Whole Effluent Toxicity Testing—
(i) A test, survey, study, protocol or assessment which includes the use of aquatic, bacterial, invertebrate or vertebrate species to measure acute or chronic toxicity, and any biological or chemical measure of bioaccumulation, bioconcentration or impact on established aquatic and biological communities.
(ii) The term includes any established, scientifically defensible method that is sufficiently sensitive to measure toxic effects.
WQBEL—Water Quality-based Effluent Limitation—An effluent limitation based on the need to attain or maintain the water quality criteria and to assure protection of designated and existing uses.
Water quality standards—The combination of water uses to be protected and the water quality criteria necessary to protect those uses.
Weekly average discharge limitation—The highest allowable average of daily discharges over a calendar week, calculated as the sum of all daily discharges measured during the calendar week divided by the number of daily discharges during that week.
Wetlands—Areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas.
Whole effluent toxicity—The aggregate toxic effect of an effluent measured directly with a WETT.
§ 92a.3. Incorporation of Federal regulations by reference.
(a) The Federal NPDES regulations listed in subsection (b), including all appendices, future amendments and supplements thereto, are incorporated by reference to the extent that these provisions are applicable and not contrary to the law of the Commonwealth. In the event of a conflict between Federal and regulatory provisions of the Commonwealth, the provision expressly set out in this chapter shall be applied unless the Federal provision is more stringent.
(b) The following Federal regulatory provisions in 40 CFR Parts 122, 124 and 125 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System; procedures for decision making; and criteria and standards for the National Pollutant Discharge Elimination system) are incorporated by reference:
(1) 122.2 (relating to definitions) unless the definitions in § 92a.2 (relating to definitions) are different.
(2) 123.25(c) (relating to requirements for permitting).
(3) 124.57(a) (relating to public notice).
(4) 125.1—125.3 (relating to criteria and standards for imposing technology-based treatment requirements under sections 301(b) and 402 of the act).
(5) 125.30—125.32 (relating to criteria and standards for determining fundamentally different factors under sections 301(b)(1)(A), 301(b)(2)(A) and (E) of the act).
(6) 125.70—125.73 (relating to criteria for determining alternative effluent limitations under section 316(a) of the act).
(c) The Federal NPDES regulations listed in §§ 92a.4—92a.6, 92a.8, 92a.21, 92a.22, 92a.32—92a.37, 92a.41—92a.45, 92a.55, 92a.61, 92a.71—92a.74 and 92a.92, including all appendices, future amendments and supplements thereto, are incorporated by reference to the extent that these provisions are applicable and not contrary to the law of the Commonwealth. In the event of a conflict between Federal and regulatory provisions of the Commonwealth, the provision expressly set out in this chapter shall be applied unless the Federal provision is more stringent.
§ 92a.4. Exclusions.
The provisions of 40 CFR 122.3(a)—(g) (relating to exclusions) are incorporated by reference.
§ 92a.5. Prohibitions.
(a) The provisions of 40 CFR 122.4 (relating to prohibitions (applicable to State NPDES programs, see 123.25)) are incorporated by reference.
(b) A permit may not be issued, modified or reissued for a sanitary sewer overflow.
§ 92a.6. Effect of a permit.
The provisions of 40 CFR 122.5 (relating to effect of a permit) are incorporated by reference.
§ 92a.7. Duration of permits and continuation of expiring permits.
(a) NPDES permits must have a fixed term not to exceed 5 years.
(b) The terms and conditions of an expiring permit are automatically continued when the following conditions are met:
(1) The permittee has submitted a timely application for reissuance of an existing permit in accordance with § 92a.75 (relating to reissuance of expiring permits).
(2) The Department is unable, through no fault of the permittee, to reissue or deny a permit before the expiration date of the previous permit.
(c) Permits continued under subsection (b) remain effective and enforceable against the discharger until the Department takes final action on the pending permit application.
§ 92a.8. Confidentially of information.
(a) The provisions of 40 CFR 122.7 (b) (relating to confidentially of information) are incorporated by reference.
(b) The Department may protect any information, other than effluent data, contained in NPDES forms, or other records, reports or plans pertaining to the NPDES permit program as confidential upon a showing by any person that the information is not a public record for the purposes of section 607 of the State Act (35 P. S. § 691.607). Documents that may be protected as confidential and are not public records are those that if made public would divulge an analysis of chemical and physical properties of coal (excepting information regarding the mineral or elemental content that is potentially toxic in the environment), and those that are confidential commercial information or methods or processes entitled to protection as trade secrets under State or Federal law. If, however, the information being considered for confidential treatment is contained in an NPDES form, the Department will forward the information to the Administrator for concurrence in any determination of confidentiality. If the Administrator does not concur that some or all of the information being considered for confidential treatment merits the protection and notifies the Department in writing, the Department will make available to the public that information determined by the Administrator in consultation with the EPA Office of General Counsel not entitled to protection in accordance with 40 CFR Part 2 (relating to public information).
(c) Information approved for confidential status, whether or not contained in an NPDES form, will be disclosed, upon request, to the Administrator, or an authorized representative, who shall maintain the disclosed information as confidential.
§ 92a.9. NPDES permit satisfies other permit requirements.
An NPDES permit issued for a discharge pursuant to this chapter is the Department permit for purposes of sections 202 and 307 of the State Act (35 P. S. §§ 691.202 and 691.307).
§ 92a.10. Pollution prevention.
(a) The Department will encourage pollution prevention by providing assistance to the permittee and users of the permittee's facilities in the consideration of pollution prevention measures such as process changes, materials substitution, reduction in volume of water use, in-process recycling and reuse of water and general measures of ''good housekeeping'' within the plant or facility.
(b) The Department will encourage consideration of the following measures, in descending order of preference, for environmental management of wastes:
(1) Process change.
(2) Materials substitution.
(3) Reuse.
(4) Recycling.
(5) Treatment.
(6) Disposal.
§ 92a.11. Other chapters applicable.
To the extent that Chapters 16, 77, 87—91, 93, 95, 96, 102 and 105 pertain to a discharge for which an NPDES permit is required, those chapters govern whenever their application produces a more stringent effluent limitation than would be produced by application of Federal requirements. Effluent limitations resulting from the application of those chapters must be expressed in an NPDES permit issued under this chapter.
§ 92a.12. Treatment requirements.
(a) Specific treatment requirements and effluent limitations for each discharge must be established based on the more stringent of the following:
(1) Requirements specified in Chapters 16, 77, 87—90, 93, 95, 96 and 102.
(2) The applicable treatment requirements and effluent limitations to which a discharge is subject under this chapter and the Federal Act.
(3) The treatment requirements and effluent limitations of this title.
(b) When interstate or international agencies under an interstate compact or international agreement establish applicable effluent limitations or standards for dischargers of this Commonwealth to surface waters that are more stringent than those required by this title, the more stringent standards and limitations apply.
(c) If the Department has confirmed the presence or critical habitat of endangered or threatened species under Federal or State law or regulation, the Department will limit discharges to these waters to ensure protection of these species and critical habitat.
(d) New or changed water quality standards or treatment requirements may result from revisions to Chapters 16, 77, 87—90, 92a, 93, 95, 96 or 102, or other plans or determinations approved by the Department. Upon notice from the Department, a permittee of an affected facility shall promptly take the steps necessary to plan, obtain a permit or other approval, and construct facilities that are required to comply with the new water quality standards or treatment requirements.
(e) Within 180 days of the receipt of the notice, the permittee shall submit to the Department either a report establishing that its existing facilities are capable of meeting the new water quality standards or treatment requirements, or a schedule setting forth the nature and date of completion of steps that are necessary to plan, obtain a permit or other approval, and construct facilities to comply with the new water quality standards or treatment requirements. The permittee shall comply with the schedule approved by the Department.
(f) Whenever a point of projected withdrawal for a new potable water supply not previously considered is identified by the Department, the Department will notify a discharger if more stringent effluent limitations are needed to protect the point of withdrawal. The discharger shall meet the more stringent effluent limitations in accordance with a schedule approved by the Department. The Department will issue orders directing dischargers to achieve compliance or will impose permit modifications with compliance schedules, when necessary.
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. Permit-by-Rule for SRSTPs. 92a.25. Permit-by-Rule for application of pesticides. 92a.26. New or increased discharges, or change of wastestream. 92a.27. Incomplete applications or incomplete NOIs. 92a.28. Application fees. 92a.29. Sewage discharges. 92a.30. Industrial waste discharges. 92a.31. CAFO. 92a.32. CAAP. 92a.33. Aquaculture projects. 92a.34. Stormwater discharges. 92a.35. Silviculture activities. 92a.36. Cooling water intake structures 92a.37. New sources and new discharges. 92a.38. 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, except as required by the Department.
(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. Persons are not required to submit an application for an individual permit for SRSTPs or for the application of pesticides that are subject to permit-by-rule, provided the requirements of §§ 92a.24 and 92a.25 (relating to permit-by-rule for SRSTPs; and permit-by-rule for application of pesticides) are met.
(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.28 (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.22. Signatories to permit applications and reports.
The provisions of 40 CFR 122.22 (relating to signatories to permit applications and reports (applicable to State programs, see 123.25)) are incorporated by reference.
§ 92a.23. NOI for coverage under an NPDES general permit.
(a) 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 result in 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, primary industrial facilities, and stormwater discharges associated with industrial activities must require that an NOI be submitted for each reissuance of coverage under the general permit. A general permit for any other category of discharges may be designed to allow discharges to continue to be authorized to discharge without submitting a NOI for each reissuance of coverage under the general permit. The Department will consider the following in deciding whether an NOI must be submitted for each reissuance of coverage under the general permit: the type of discharge; the potential for toxic and conventional pollutants in the discharge; and the estimated number of discharges to be covered by the permit. The public notice of the general permit will provide the reasons for not requiring the NOI.
§ 92a.24. Permit-by-rule for SRSTPs.
(a) Coverage. A person is deemed to have an NPDES permit authorizing discharge from an SRSTP provided the following requirements are met:
(1) The person has obtained coverage under the water quality management general permit for small flow treatment facilities under Chapter 91 (relating to water quality provisions).
(2) The SRSTP is designed to adequately treat sewage flows of not greater than 1,000 GPD.
(3) The discharge is not to a surface water classified as a High Quality Water or an Exceptional Value Water under Chapter 93 (relating to water quality standards).
(4) The person maintains and operates the SRSTP in compliance with the standards and requirements of the Department contained in approvals issued under Chapter 71 (relating to administration of sewage facilities planning program) and the water quality management general permit issued under Chapter 91.
(b) Administration of permit-by-rule for SRSTPs.
(1) Requiring an individual or general permit. The Department may revoke or suspend coverage under a permit-by-rule, and require that NPDES permit coverage be obtained under an individual or general NPDES permit, when the permittee has violated one or more provisions of this title or otherwise is ineligible for coverage under the water quality management general permit for small flow treatment facilities. Upon notification by the Department that coverage under an individual or general NPDES permit is required, the permittee shall submit a complete application or NOI, in conformance with this chapter, within 90 days of receipt of the notification. Failure to submit the required application or NOI within 90 days automatically terminates coverage under the permit-by-rule.
(2) Termination of coverage under permit-by-rule for SRSTPs. When an individual permit or approval for coverage under a general NPDES permit is issued for an SRSTP, coverage under the permit-by-rule for SRSTPs is automatically terminated.
§ 92a.25. Permit-by-rule for application of pesticides.
(a) Coverage. A person is deemed to have an NPDES permit authorizing application of a pesticide provided the following requirements are met:
(1) The pesticide is registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C.A. §§ 136—136y), and applied consistent with all applicable requirements of FIFRA.
(2) The pesticide application meets at least one of the following conditions:
(i) The pesticide is applied directly to surface water to control pests. An example is an aquatic pesticide applied to surface water to control mosquito larvae or aquatic weeds.
(ii) The pesticide is applied over or near surface waters to control pests, where a portion of the pesticide will unavoidably be deposited to surface waters in order to target the pests effectively. An example is a pesticide applied over surface water to control insects, or to a field or forest canopy near surface water to control insects or terrestrial vegetation.
(3) The discharge of the pesticide is not associated with any facility or activity related to the manufacture, storage or disposal of the pesticide.
(b) Administration of permit-by-rule for application of pesticides.
(1) Requiring an individual or general permit. The Department may revoke or suspend coverage under a permit-by-rule, and require that permit coverage be obtained under an individual or general NPDES permit, when the permittee has violated one or more provisions of this title or otherwise is ineligible for coverage under the permit-by-rule. Upon notification by the Department that coverage under an individual or general NPDES permit is required, the permittee shall submit a complete application or NOI, in conformance with this chapter, within 90 days of receipt of the notification. Failure to submit the required application or NOI within 90 days automatically terminates coverage under the permit-by-rule.
(2) Termination of coverage under permit-by-rule for application of pesticides. When an individual permit or approval for coverage under a general NPDES permit is issued for a pesticide application, coverage under the permit-by-rule for pesticide application is automatically terminated.
§ 92a.26. New or increased discharges, or change of waste streams.
(a) Sewage discharges and industrial waste discharges. Facility expansions or process modifications, which may result in increases of permitted pollutants that do not have the potential to exceed ELGs or violate effluent limitations specified in the permit, may be initiated by the permittee without the approval of the Department, but shall be reported by submission to the Department of notice of the increased discharges within 60 days. Facility expansions or process modifications, which may result in increases of pollutants that have the potential to exceed ELGs or violate effluent limitations specified in the permit, or which 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 commencing 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 initiating the new or expanded disturbed area.
§ 92a.27. 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.28. Application fees.
(a) The application fee is payable to the Commonwealth according to the fee schedule set forth in this section. All flows listed in this section are 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 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 Mining activity $1,000 for new; $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
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