Pennsylvania Code
Pennsylvania Code & Bulletin
COMMONWEALTH OF PENNSYLVANIA

• No statutes or acts will be found at this website.

The Pennsylvania Bulletin website includes the following: Rulemakings by State agencies; Proposed Rulemakings by State agencies; State agency notices; the Governor’s Proclamations and Executive Orders; Actions by the General Assembly; and Statewide and local court rules.

PA Bulletin, Doc. No. 21-430

NOTICES

DEPARTMENT OF
ENVIRONMENTAL PROTECTION

Conditional State Water Quality Certification under Section 401 of the Clean Water Act for the United States Army Corps of Engineers Pennsylvania State Programmatic General Permit 6 (PASPGP-6)

[51 Pa.B. 1592]
[Saturday, March 20, 2021]

 On December 5, 2020, the Department of Environmental Protection (Department) published a notice at 50 Pa.B. 6961 (December 5, 2020) that it would accept comments on the proposed Conditional State Water Quality Certification (SWQC) for the United States Army Corps of Engineers' (Corps) proposed Pennsylvania State Programmatic General Permit 6 (PASPGP-6) during a 30-day public comment period that concluded on January 4, 2021. The Department received one comment letter, and the comments therein were considered by the Department prior to its issuance of Commonwealth's final conditional SWQC to the Corps on February 12, 2021. The comment letter expressed support for the Department's issuance of conditional SWQC to the Corps for PASPGP-6. The comment letter is accessible online by means of the Department's eComment web site at www.ahs.dep.pa.gov/eComment. In response to the Department's review and in consideration of the public comments received, the Department has incorporated additional statutory, regulatory citations and clarifications into this final certification.

 Persons aggrieved by the Department's issuance of the final conditional SWQC to the Corps may appeal as provided therein.

 The Conditional State Water Quality Certification as issued by the Department on February 12, 2021, is as follows:

Conditional State Water Quality Certification under Section 401 of the Clean Water Act for the United States Army Corps of Engineers Pennsylvania State Programmatic General Permit 6 (PASPGP-6)

Effective Date: February 12, 2021

 The Department of Environmental Protection (Department) issues, on behalf of the Commonwealth, Conditional State Water Quality Certification (SWQC) for activities authorized by the United States Army Corps of Engineers (Corps) Baltimore, Philadelphia and Pittsburgh Districts under the Pennsylvania State Programmatic General Permit 6 (PASPGP-6), which was proposed by the Corps (Special Public Notice 20-57) under section 404(e) of the Clean Water Act (act) (33 U.S.C.A. § 1344(e)) and section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. § 403), subject to the conditions set forth in this certification.

 PASPGP-6 continues the Corps' recognition of the Commonwealth's permitting process for activities affecting waterways, water bodies and wetlands authorized under the Dam Safety and Encroachments Act (32 P.S. §§ 693.1—693.27). PASPGP-6 allows applicants to obtain both Corps section 404 permits and State water obstruction and encroachment permits through a joint application submitted to the Department and delegated conservation districts for most projects requiring these permits in this Commonwealth. Through the incorporation of Federal and State permitting standards in one process, PASPGP-6 continues a streamlined process for permit applicants without compromising comprehensive environmental protection. This SWQC applies to structures and activities that qualify for PASPGP-6 within the jurisdiction of section 404 of the act and structures or work in or affecting navigable waters of the United States under section 10 of the River and Harbor Act of 1899 (33 U.S.C.A. § 403).

 Section 401(a) of the act (33 U.S.C.A. § 1341(a)) requires an applicant seeking authorization to use PASPGP-6 to provide the Corps with certification from the Commonwealth that any discharge that may result from the applicant's proposed activity will comply with the applicable provisions of sections 301—303, 306 and 307 of the act (33 U.S.C.A. §§ 1311—1313, 1316 and 1317). Consistent with the act, the Department has established water quality standards for this Commonwealth and programs to achieve those standards consistent with the applicable provisions of the act. The Department is providing notice of its conditional SWQC for use by applicants seeking coverage under PASPGP-6 for projects that do not require any Federal permit or license other than section 404 permit under the act or section 10 of the Rivers and Harbors Act of 1899, when applicable.

 The Department hereby certifies that structures and activities authorized for coverage under the Corps' PASPGP-6, subject to the conditions herein, will comply with the applicable provisions of sections 301—303, 306 and 307 of the act (33 U.S.C.A. §§ 1311—1313, 1316 and 1317). The Department further certifies that the construction, operation and maintenance of the projects in accordance with PASPGP-6 will comply with the Commonwealth's water quality standards provided the project applicant complies with the following SWQC conditions and constructs, operates and maintains the project in compliance with the terms and conditions of State permits, authorizations and approvals obtained to meet these SWQC conditions:

 1. Prior to beginning any activity authorized by the Corps under PASPGP-6, the applicant shall obtain from the Department all necessary environmental permits, authorizations or approvals, and submit to the Department environmental assessments and other information necessary to obtain the permits and approvals, as required under State law, including The Clean Streams Law (35 P.S. §§ 691.1—691.1001), the Dam Safety and Encroachments Act (32 P.S. §§ 693.1—693.27), the Surface Mining Conservation and Reclamation Act (52 P.S. §§ 1396.1—1396.19b), the Noncoal Surface Mining Conservation and Reclamation Act (52 P.S. §§ 3301—3326), the Bituminous Mine Subsidence and Land Conservation Act (52 P.S. §§ 1406.1—1406.21), the Coal Refuse Disposal Control Act (52 P.S. §§ 30.51—30.66), the Solid Waste Management Act (35 P.S. §§ 6018.101—6018.1003), the Hazardous Sites Cleanup Act (35 P.S. §§ 6020.101—6020.1305), the Land Recycling and Environmental Remediation Standards Act (35 P.S. §§ 6026.101—6026.908), 58 Pa.C.S. §§ 3201—3274 (related to development), the Air Pollution Control Act (35 P.S. §§ 4001—4015), the Storage Tank and Spill Prevention Act (35 P.S. §§ 6021.101—6021.2104) and the regulations promulgated thereunder, including 25 Pa. Code Chapters 16, 71, 77, 78, 78a, 86—91, 92a, 93, 95, 96, 102, 105, 106, 127, 245 and 260a—299.

 The above-referenced State statutes and regulations have been included as a condition to this SWQC as they comprise the Commonwealth's water quality standards and the environmental regulatory programs, which PADEP has determined are necessary to achieve and maintain those standards. See, 33 U.S.C. §§ 1313 and 1370. This condition has been included in this certification based on a review of the proposed PASPGP-6.

 2. Fill material may not contain any wastes as defined in the Solid Waste Management Act.

 The prohibition on fill material not containing any type of waste as defined in the Solid Waste Management Act has been added as a condition to ensure that the Commonwealth's water quality standards are maintained through the prevention of pollution to waters of the Commonwealth. 35 P.S. § 6018.610(1).

 3. Applicants and projects eligible for the PASPGP-6 must obtain all State permits or approvals, or both, necessary to ensure that the project meets the State's applicable water quality standards, including a project-specific SWQC.

 This condition has been added to ensure that applicants and projects eligible for PASPGP-6 obtain the permits, authorizations or approvals referenced under the State laws in Condition 1, including applicants for a project-specific SWQC, to prevent pollution to waters of the Commonwealth and meet applicable water quality standards. See 32 P.S. §§ 679.103, 693.2, 693.6, 693.8; 35 P.S. §§ 691.611, 4008, 6018.610, 6020.1108, 6021.901, 6026.106; 52 P.S. §§ 30.55, 1396.4, 1406.5, 3307; 58 P.S. § 3211.

 The Department has determined these proposed SWQC conditions are necessary to achieve the Commonwealth's water quality standards, which have been approved by the United States Environmental Protection Agency as compliant with the act. The proposed SWQC conditions achieve these standards through compliance with existing environmental programs administered by the Department under State laws and regulations.

 This SWQC is subject to the Department's determination that the PASPGP-6 activities are consistent with the Coastal Zone Management Act (16 U.S.C.A. §§ 1451—1466). The Department issued its consistency determination for the proposed PASPGP-6 to the Corps on January 27, 2021.

 This SWQC is only available for projects that do not require any Federal authorization other than authorization from the Corps under section 404 of the act or section 10 of the Rivers and Harbors Act of 1899. Applicants seeking authorization for activities not eligible for coverage under PASPGP-6, or for activities that require another Federal authorization (such as an interstate natural gas pipeline, a gas storage field or a nuclear or hydroelectric project requiring authorization by another Federal agency), must submit a request to the Department for a project-specific SWQC.

 The scope of the issuance of this SWQC is related only to the scope and applicability of the proposed PASPGP-6. Any activity or project requiring the Department to issue 401 SWQC that is beyond the scope of the proposed PASPGP-6 or other programmatically issued SWQC (e.g. Nationwide Permits) will require the applicant to obtain a project-specific SWQC from the Department. This would include any activity or project requiring a SWQC associated with an authorization, permit or license issued by a Federal agency, such as FERC or NRC. Such activities or projects include, but are not limited to, an interstate natural gas pipeline, a gas storage field or a nuclear or hydroelectric project.

 Since PASPGP-1 in 1995, Pennsylvania has had the opportunity to consider the Corps' final SPGP prior to issuance of Pennsylvania's SWQC. See 72 FR 11091, 77 FR 10184, and 82 FR 1860 and 32 Pa.B. 1348, 36 Pa.B. 3725, 41 Pa.B. 3938 and 46 Pa.B. 3879. Based upon the change in federal regulations at 40 CFR 121.1—121.16, effective September 21, 2020, PADEP has only been provided with an opportunity to review the Corps proposed PASPGP-6. PADEP is hereby providing conditional 401 State Water Quality Certification (SWQC) for the Corps' proposed PASPGP-6 based on the scope of the Corps November 6, 2020 request. Pursuant to 33 U.S.C. § 1341(a)(1), the Department reserves the right to amend or withdraw this conditional SWQC if the language set forth in the final PASPGP-6, published by the Corps differs so substantially from the language in the proposed PASPGP-6, such that the conditions contained herein can no longer ensure compliance with Pennsylvania's water quality standards.

 The proposed PASPGP-6 and Special Public Notice 20-57 can be viewed on the Corps' webpage at www.nab.usace.army.mil/Missions/Regulatory/Public-Notices/Public-Notice-View/Article/2336799/spn-20-57-pennsylvania-state-programmatic-general-permit-6-paspgp-6.

 Persons aggrieved by this action may appeal, under section 4 of the Environmental Hearing Board Act (35 P.S. § 514) and 2 Pa.C.S. §§ 501—508 and 701—704 (relating to Administrative Agency Law) to the Environmental Hearing Board, Second Floor, Rachel Carson State Office Building, 400 Market Street, P.O. Box 8457, Harrisburg, PA 17105-8457, (717) 787-3483. TDD users may contact the Environmental Hearing Board (Board) through the Pennsylvania Hamilton Relay Service, (800) 654-5984. Appeals must be filed with the Board within 30 days of publication of this notice, or within 30 days of receipt of written notice of this action, whichever occurs first. Copies of the appeal form and the Board's rules of practice and procedure may be obtained from the Board. The appeal form and the Board's rules of practice and procedure are also available in braille or on audiotape from the Secretary to the Board at (717) 787-3483. This paragraph does not, in and of itself, create any right of appeal beyond that permitted by applicable statutes and decisional law.

 For individuals who want to challenge this action, the appeal must reach the Board within 30 days. A lawyer is not needed to file an appeal with the Board.

 Important legal rights are at stake, however, so individuals should show this document to a lawyer at once. Persons who cannot afford a lawyer may qualify for free pro bono representation. Call the Secretary to the Board at (717) 787-3483 for more information.

PATRICK McDONNELL, 
Secretary

[Pa.B. Doc. No. 21-430. Filed for public inspection March 19, 2021, 9:00 a.m.]


No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.