RULES AND REGULATIONS

Title 25—ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[ 25 PA. CODE CH. 92a ]

National Pollutant Discharge Elimination System (NPDES) Permitting, Monitoring and Compliance

[40 Pa.B. 5767]
[Saturday, October 9, 2010]

 The Environmental Quality Board (Board) rescinds Chapter 92 and replaces it by adding Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance). This final-form rulemaking describes the process the Department of Environmental Protection (Department) will follow in issuing National Pollutant Discharge Elimination System (NPDES) permits for point source discharges of wastewater and stormwater to conform to the requirements of the Federal Clean Water Act (33 U.S.C.A. §§ 1251—1387) and The Clean Streams Law (35 P. S. §§ 691.1—691.1001). This final-form rulemaking represents an extensive reorganization of existing Chapter 92 so that it follows the organization of the corresponding Federal regulations in 40 CFR Part 122 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System). The final-form rulemaking also sets forth a new NPDES fee structure designed to cover the Commonwealth's share of administering the NPDES program. In addition, several new provisions incorporating recent requirements established under the Federal program have been added and treatment requirements based on the secondary treatment standard for discharges of treated sewage have been established.

 The order was adopted by the Board at its meeting of July 13, 2010.

A. Effective Date

 This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.

B. Contact Persons

 For further information, contact Ronald Furlan, Environmental Program Manager, Division of Planning and Permits, P. O. Box 8774, Rachel Carson State Office Building, Harrisburg, PA 17105-8774, (717) 787-8184); or William S. Cumings, Jr., Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, wcumings@state.pa.us. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department's web site at www.depweb.state.pa.us.

C. Statutory Authority

 This final-form rulemaking is adopted under the authority of sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402), which provide for the adoption of regulations necessary for the implementation of The Clean Streams Law, and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the Board to promulgate rules and regulations necessary for the proper performance of the work of the Department.

D. Background and Purpose

 Chapter 92 set forth requirements regarding the issuance of NPDES permits for point source discharges of treated wastewater and stormwater in accordance with the Federal Clean Water Act. The regulations did not follow the organization of the comparable Federal regulations in 40 CFR Part 122. The primary purpose of this final-form rulemaking is to reorganize and replace existing Chapter 92 with new Chapter 92a, which is organized in a manner more consistent with the organization of 40 CFR Part 122.

 The final-form rulemaking includes provisions intended to update the Commonwealth's NPDES Program to be consistent with changes at the Federal level since Chapter 92 was amended in 1999. Treatment requirements based on the secondary treatment standard for discharges of treated sewage have been established and a new NPDES permit fee structure is adopted.

 The proposed rulemaking was adopted by the Board at its November 17, 2009, meeting. The proposed rulemaking was published at 40 Pa.B. 847 (February 13, 2010). There was 30-day public comment period, which concluded on March 15, 2010. The Board received public comments on the proposed rulemaking from 42 commentators, including the Independent Regulatory Review Commission (IRRC). The comments received on the proposed rulemaking are summarized in Section E and are more extensively addressed in a Comment and Response Document which is available from the Department.

 The Board considered all of the public comments received. The Department briefed the Agricultural Advisory Board at its April 21, 2010, meeting that the revisions did not affect the agricultural community. The Water Resources Advisory Committee (WRAC) was briefed on the proposed revisions at its April 14, 2010, meeting, and considered the revisions at its May 11, 2010, meeting. The WRAC approved the final-form rulemaking with several additional comments. Additional revisions were made to the final-form rulemaking in response to those comments. The WRAC has provided minutes of its meetings to document its consideration and approval of the final-form rulemaking.

E. Summary of Changes to Proposed Rulemaking

§ 92a.2. Definitions

 The following definitions in the proposed rulemaking were deleted in the final-form rulemaking: ''expanding facility or activity,'' ''immediate'' and ''permit-by-rule.''

 The definition of ''BMP—Best Management Practices'' has been revised by deleting proposed subparagraphs (iii) and (iv), which included measures designed to reduce erosion and runoff of soil and Best Management Practices (BMP) measures developed under 25 Pa. Code (relating to environmental protection) to reduce pollutant loading to surface waters, and replacing them with new paragraph (iii), which provides that the term ''includes activities, facilities, measures, planning or procedures used to minimize accelerated erosion and sedimentation and manage stormwater to protect, maintain, reclaim, and restore the quality of waters and the existing and designated uses of waters within this Commonwealth before, during, and after earth disturbance activities.'' The new definition of ''BMP—Best Management Practices'' therefore focuses on practices relating to management of point sources of pollution.

 The definition of ''minor amendment'' was revised to provide that it includes an amendment to an NPDES permit to ''allow for a change in ownership or operational control of a facility.''

 The definition of ''municipal separate storm sewer system'' was transferred intact to the definition of ''MS4—Municipal separate storm sewer system.''

 The definition of ''small municipal separate storm sewer system'' was revised by deleting a cross-reference to two paragraphs of the Federal definition of the same term.

 The definition of ''stormwater discharge associated with construction activity'' was revised consistent with a recent revision to this definition in Chapter 102 (relating to erosion and sediment control). This revised definition eliminates a distinction between earth disturbances between 1 and 5 acres, and earth disturbances over 5 acres. Essentially, potential discharge associated with an earth disturbance of 1 acre or more will meet the definition of a ''stormwater discharge associated with construction activity.''

 The definition of ''stormwater discharge associated with industrial activity'' was revised by specifying the subparagraphs of the Federal definition in 40 CFR 122.26(b)(14) (relating to storm water discharges (applicable to State NPDES programs, see § 123.25)) which are applicable. Subparagraph (x) of the Federal definition which relates to construction activities was not incorporated into the definition.

 The proposed definition of ''TMDL—Total Maximum Daily Load'' was replaced with a cross-reference to the definition of the same term in Chapter 96 (relating to water quality standards implementation).

§ 92a.3. Incorporation of Federal regulations by reference

 The existing regulation regarding incorporation of Federal regulations by reference, § 92.2, provided that appendices, future amendments and supplements thereto are incorporated by reference. That will remain the case. However, to ensure consistency with other regulations promulgated by the Board incorporating Federal requirements, many of which do not specifically provide for the incorporation of future amendments to the Federal regulations, the references to future amendments are being deleted in subsections (a) and (c) of the final-form rulemaking. The Board emphasizes that this does not mean future amendments to the listed regulations are not incorporated by reference—they are.

 In addition, the language in subsections (a) and (c) regarding the applicability of a State or Federal requirement in the event of a conflict between those requirements was slightly revised to make it clear that it would apply to one or more conflicts, not just more than one. The Federal regulations in 40 CFR 132 (relating to water quality guidance for the Great Lakes System) have been incorporated by reference in new subsection (b)(7).

§ 92a.12. Treatment requirements

 Subsection (d) provides that a permittee of an affected facility, upon notice from the Department, is to take certain steps when there are new or changed water quality standards. These include steps necessary to plan, obtain a permit or other approval and construct facilities necessary to comply with the new water quality standards or treatment requirements. The proposed rulemaking has been amended in this final-form rulemaking by adding language requiring a permittee to undertake any other actions which may be necessary to comply with the requirements. The Board therefore clarifies that actions other than constructing new facilities may be appropriate.

 Subsection (e) provides that a permittee is to submit either a report establishing that it is capable of meeting the new water quality standards or treatment requirements or a schedule of steps to comply with the new standards or requirements. Language has been added providing that the permittee is to provide information regarding ''other actions that are necessary'' to comply with the new standards or requirements when applicable.

§ 92a.21. Application for a permit

 Subsection (a) of the proposed rulemaking provided that specified subsections of 40 CFR 122.21 (relating to application for a permit (applicable to State programs, see § 123.25)) are to be incorporated by reference, ''except as required by the Department.'' The quoted phrase has been deleted from the final-form rulemaking because it was susceptible to misinterpretation, as indicated in the comments received regarding the proposed rulemaking.

 Subsection (b) requires that persons desiring to discharge pollutants file applications for an individual permit. Under the proposed rulemaking, persons proposing to discharge from a single residence sewage treatment plants (SRSTP) or through the application of pesticides would have been covered by a permit-by-rule and, accordingly, would not have been required to file an application. The authorization for the permits-by-rule have been deleted. Accordingly, the references to the permits-by-rule have been deleted from the final-form rulemaking.

§ 92a.23. NOI for coverage under an NPDES general permit

 Under the existing regulation, dischargers who wish to be covered under a general permit are required to submit a Notice of Intent (NOI) to be covered under the general permit. This is so regardless of whether the coverage granted is based on an initial NOI or an NOI for a reissued general permit. Subsection (c) of the final-form rulemaking provides that a discharge may also be authorized under a general permit without the submission of an NOI for coverage or with a requirement that an NOI be submitted for initial coverage, but not for reissuance of coverage. This is intended to address those situations which may have been covered under a permit-by-rule. This change is consistent with 40 CFR 122.28(b)(2)(v) (relating to general permits (applicable to State NPDES programs, see § 123.25)) which provides that states and the United States Environmental Protection Agency (EPA) are authorized to allow persons to discharge under a general permit without submitting an NOI when the permitting authority finds that an NOI requirement would be inappropriate and provided that the discharge is not from a publicly-owned treatment works (POTW), combined sewer overflow (CSO), municipal separate storm sewer system (MS4), primary industrial facility or a stormwater discharge associated with a construction activity.

 Under the existing regulation, the NOI must, among other things, demonstrate that the discharge from the point source, individually or cumulatively, will not result in a violation of an applicable water quality standard established under Chapter 93 (relating to water quality standards). The phrase in subsection (a) stating ''result in'' a violation has been replaced with ''cause or contribute to'' a violation to ensure consistency with comparable Federal language.

 Subsection (c) outlines the factors which the Department will consider in determining whether an NOI shall be submitted for coverage under a general permit. The factors include the type of discharge, the potential for toxic and conventional pollutant in the discharge and the estimated number of discharges to be covered. Another factor, the cumulative impact of the discharges, has been added in this final-form rulemaking.

Proposed § 92a.24. Permit-by-rule for SRSTPs

Proposed § 92a.25. Permit-by-rule for application of pesticides

 The proposed rulemaking would have established criteria and requirements for coverage of discharges from SRSTPs and the application of pesticides under a permit-by-rule. The proposed provisions regarding the permits-by-rule have been deleted in the final-form rulemaking. Because of the deletions, the remaining sections of Subchapter B (relating to permit application and special NPDES program requirements) have been renumbered.

§ 92a.24. New or increased discharges, or change of waste streams

 Proposed § 92.26(a) would have authorized certain activities which result in increases in the discharge of certain permitted pollutants which do not have the potential to exceed effluent limitations without prior approval of the Department. A change in the pollution profile of the effluent that may exceed effluent limitations or require new effluent limitations would have required prior approval of the Department.

 This subsection was amended to delete the authorization for increases in the discharge of pollutants without prior notification to the Department. This authorization was deleted because it appeared to limit normal and usual variation in wastestreams, and normal increases in the pollutant load already provided for in the permit. The notification requirement has been amended to state that in addition to facility expansions or process modifications stated in the proposed rulemaking, production increases and a change in wastestream that may result in an increase of pollutants that may have the potential to exceed effluent limitations guidelines or violate effluent limitations or require new effluent limitations require prior approval from the Department. The approval will be approved in writing before the permittee may begin the new or increased discharge or change in wastestream. The Board therefore clarifies that only changes that may exceed permit conditions or previous representations on permit applications need the prior approval of the Department.

 Subsection (b), which relates to stormwater discharges associated with construction activity, has been clarified to make it clear that the Department will determine if a permittee will be required to submit a permit application for a new or expanded disturbance area not identified in the permit before the permittee may initiate construction activity in the new or expanded disturbed area.

§ 92a.26. Application fees

 Proposed § 92a.28, final-form § 92a.26, set forth proposed permit application fees. The fees remain unchanged in this final-form rulemaking. An editorial change has been made to subsection (a) specifying that fees collected are to be deposited into the Clean Water Fund account. Minor editorial changes have also been made that move the provision for the fee for mining activities from subsection (d) to subsection (c). Since a discharge from a mining activity is an industrial waste discharge, it most properly belongs in subsection (c) and is subject to applicable industrial waste requirements.

 Subsection (g) sets a maximum fee of $2,500 for an NOI for coverage under a general permit. This subsection has been amended to include a provision that the maximum will not be applicable to the fees established in Chapter 102.

 Subsection (i) has been added providing that a Federal or State agency which provides funding to the Department for implementation of the NPDES program may be exempt from the requirement to pay permit application fees. This would only apply when the Federal or State agency provides significant funding or staff to assist the Department in the administration of the NPDES program.

§ 92a.27. Sewage discharges

 Proposed § 92a.29(a), final-form § 92a.27(a), outlined additional application requirements applicable to new and existing sewage dischargers. It also contained an exception from these requirements ''. . . where aquatic communities are essentially excluded as documented by water quality data confirming the absence of the communities and confirming the lack of a trend of water quality improvement in the waterbody, and provided that the Department has determined that the primary cause of the exclusion is unrelated to any permitted discharge.'' The quoted language has been deleted from the final-form rulemaking.

§ 92a.32. Stormwater discharges

 This section outlines application requirements for different types of stormwater discharges. Subsection (e) has been added to address application requirements for stormwater discharges associated with industrial activity.

§ 92a.34. Cooling water intake structures

 Proposed § 92a.36, final-form § 92a.34, provided that the requirements applicable to cooling water intake structures (CWIS) for new facilities under section 316(b) of the Federal Clean Water Act (33 U.S.C.A. § 1326(b)) in 40 CFR 125.80—125.89 would be incorporated by reference. Subsection (c) of the proposed rulemaking further provided that ''[t]he Department will determine if a facility with a cooling water intake structure reflects the BTA for minimizing adverse environmental impacts based on a site specific evaluation.'' Subsection (c) has been deleted in the final-form rulemaking.

§ 92a.36. Department action on NPDES permit applications

 Proposed § 92a.38(b) provided for Department consideration of Local and County Comprehensive Plans and zoning ordinances in the review of permit applications. A new specific requirement would not have been applicable to applicants, as this is the current policy of the Department. This subsection has been deleted in the final-form rulemaking and the requirement will continue to be implemented through policy.

§ 92a.41. Conditions applicable to all permits

 This section generally incorporates permit conditions applicable to NPDES permits as set forth in 40 CFR 122.41(a)—(m) (relating to conditions applicable to all permits (applicable to State programs, see § 123.25)). Subsection (b) of the proposed rulemaking provided that ''[t]he immediate notification requirements of § 91.33 (relating to incidents causing or threatening pollution) supersede the reporting requirements of 40 CFR 122.41(l)(6).'' The quoted language has been deleted and the subsection has been revised to provide that the permittee shall provide oral notification to the Department ''as soon as possible but no later than 4 hours after the permittee becomes aware of the incident causing or threatening pollution'' and provide a written submission within 5 days of becoming aware of the incident.

 Subsection (c) of the proposed rulemaking would have provided that a ''discharger may not discharge floating materials, oil, grease, scum, sheen and substances that produce color, taste, odors, turbidity or settle to form deposits.'' This subsection has been revised to account for the difference in the characteristics of the listed materials and their interactions with receiving waters. Subsection (c) now provides that ''[t]he 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

 This section outlines requirements for sewage permits involving discharges of treated sewage. Sewage discharges must meet certain requirements, but some requirements apply only to POTW facilities, and certain exemptions and adjustments are provided for in this section. The requirement relating to weekly average discharge limitations for Biochemical Oxygen Demand BOD₅ and total suspended solids (TSS) in subsection (a)(2) has been revised to apply only to POTW facilities. The requirement for tertiary treatment in certain water quality-limited scenarios in the former subsection (b) has been deleted and the remainder of the section renumbered. Several new subsections have been added: subsection (f) provides that POTW facilities that have relaxed limits for BOD₅ and TSS may retain those limits until a new or amended water quality management permit authorizing an increase in the design flow of the facility is issued; subsection (g) prvoides that POTW facilities with CSOs that cannot meet the removal efficiency requirements of subsection (a)(3) for BOD₅ and TSS during wet weather may be held to a less stringent standard; subsection (h) provides that POTW facilities with CSOs that cannot meet the removal efficiency requirements of subsection (a)(3) for BOD₅ and TSS during dry weather may be held to a less stringent standard as long as certain conditions apply; and subsection (i) provides that POTW facilities that cannot meet the removal efficiency requirements of subsection (a)(3) for BOD₅ and TSS in separate sewers due to less concentrated influent may be held to a less stringent standard as long as certain conditions apply. These new subsections largely mirror exemptions and adjustments provided for in 40 CFR 133.103 (relating to special considerations).

 Section 92a.47(a) describes secondary treatment. Subsection (a)(7) of the proposed regulation provided that one of the accomplishments of secondary treatment is treatment which complies with the requirements of § 95.2(1)—(3) relating to industrial waste and oil-bearing wastewaters. Subsequent to the adoption of this final-form rulemaking a notice was published in the Pennsylvania Bulletin at 40 Pa.B. (August 21, 2010) of amendments to Chapter 95, including an amendment to § 95.2. The amendment to § 95.2 deleted a reference to paragraph (1) and renumbered paragraphs (2) and (3) as paragraphs (1) and (2). Section 92a.47(a)(7) has been revised accordingly.

§ 92a.48. Industrial waste permit

 This section outlines requirements for industrial water permits, incorporating much of former § 92.2d. Proposed subsection (a)(4) would have required that industrial discharges of conventional pollutants be assigned technology-based limits of no greater than 50 mg/L of CBOD₅ and 60 mg/L of TSS. This provision has been deleted in the final-form rulemaking.

§ 92a.50. CAAP

 Subsection (a) of the proposed rulemaking would have provided that the antidegradation requirements of § 93.4c would apply to discharges from a concentrated aquatic animal production (CAAP) into a surface water classified as a High Quality Water or an Exceptional Value Water. This could give the impression that § 93.4c applied only to special protection waters when they actually apply to discharges to all surface waters. To avoid confusion, the language in proposed subsection (a) has been deleted in the final-form rulemaking.

 Subsection (d) of the proposed rulemaking, renumbered subsection (c) in the final-form rulemaking, would have authorized the limited use of products or chemicals that contain carcinogenic ingredients which would otherwise be prohibited provided certain conditions are met. Among the conditions outlined in the proposed rulemaking was that the permittee ''[d]emonstrate through sampling or calculation that any carcinogen in the proposed chemical will not be detectable in the final effluent, using the most sensitive analytic method available.'' The phrase ''most sensitive analytic method available'' has been revised to provide for the use of an ''EPA-approved analytic method for wastewater analysis with the lowest published detection limit'' to eliminate guesswork as to what constitutes an appropriate analytic method.

§ 92a.51. Schedules of compliance

 Subsection (a) of the proposed rulemaking would have provided, in part, that a schedule of compliance is to require compliance with final enforceable effluent limitations as soon as practicable, but in no case longer than 3 years, unless the Environmental Hearing Board (EHB) or a court of competent jurisdiction issues an order for a longer time of compliance. The 3-year limitation has been changed to 5 years in the final-form rulemaking. In addition, the reference to the EHB has been deleted. Schedules of compliance may only be extended by a court of competent jurisdiction, as under former § 92.55.

 Subsection (b) provides that when the period of time for compliance exceeds 1 year, a schedule would be set forth in the permit specifying interim requirements and the dates for their achievement. A sentence has been added to the final-form rulemaking providing that the time between interim requirements may not exceed 1 year.

§ 92a.54. General permits

 Subsection (a)(7) of the proposed rulemaking (as well as former § 92.81(a)(7)) provided that a general NPDES permit may be issued if discharges from point sources, among other things, ''[i]ndividually and cumulatively do not have the potential to cause significant adverse environmental impact.'' This subsection has been clarified in the final-form rulemaking to address violations of water quality standards also. Accordingly, a general permit may be issued where point source discharges ''[i]ndividually and cumulatively do not have the potential to cause or contribute to a violation of an applicable water quality standard established under Chapter 93 . . . or cause significant adverse environmental impact.''

 Subsection (c) of the proposed rulemaking (as well as § 92.81(c)) outlined two ways a permittee would be authorized to discharge under the general permit: (1) following a waiting period specified in the general permit; or (2) upon receipt of notification of approval for coverage under the general permit from the Department. The final-form rulemaking authorizes a third way of authorizing a discharge: immediately upon submission of the NOI. The manner in which a discharge may be authorized will be specified in the general permit.

§ 92a.61. Monitoring

 The monitoring provisions in the proposed rulemaking are retained except for some minor clarifications. Subsection (b) of the proposed rulemaking provided that the Department may impose reasonable monitoring requirements, including monitoring of the intake and discharge flow of a facility or activity. This subsection has been slightly revised to make it clear that the provision addresses surface water intake and discharge waters, and that monitoring would not be limited to monitoring of the flow parameter.

 Subsection (d) of the proposed rulemaking provided, in relevant part, that a discharge authorized by an NPDES permit that is ''not a minor discharge'' shall be monitored by the permittee for certain named parameters. This section was revised to make it clear that the discharge authorized by the NPDES permit is that issued to a facility which is not a minor facility rather than for a minor discharge.

§ 92a.62. Annual fees

 The annual fees established in this section remain unchanged from those in the proposed rulemaking. Subsection (a) has been revised to make it clear that these fees are to be paid to the Clean Water Fund and that the categories of fees are based on annual average design flows. In addition, subsection (b) has been revised to make it clear that the annual fees are for discharges of treated sewage, not domestic sewage as was inadvertently stated in the proposed rulemaking.

 As with permit fees established under § 92a.26 (relating to application fees), a Federal or State agency that provides funding to the Department for the implementation of the NPDES program may be exempt from the payment of annual fees.

§ 92a.75. Reissuance of expiring permits

 Subsection (b) of the proposed rulemaking would have authorized the administrative extension of a permit for a minor facility for a maximum of 5 years provided certain conditions were met; namely the permittee is in compliance with applicable requirements and no changes in Department regulations have occurred since the permit was issued which would affect the effluent limitations. This subsection has been deleted in the final-form rulemaking because it was found to be confusing and subject to misinterpretation.

§ 92a.84. Public notice of general permits

 Subsection (c) of the proposed rulemaking (and former § 92.83(a)(3)) outlined mechanisms for approvals for coverage under a general permit. The mechanisms were either a notice published in the Pennsylvania Bulletin of each NOI under an applicable general NPDES permit and of each approval of coverage or notice will be published in the Pennsylvania Bulletin of each approval of coverage only. The final-form rulemaking authorizes a third mechanism; a NOI would not be required for coverage under a general permit. This is consistent with the requirements of 40 CFR 122.28(b)(2)(v) which authorizes discharges under a general permit without submitting an NOI under specified conditions.

§ 92a.85. Notice to other government agencies

 Subsection (a) was added to incorporate by reference 40 CFR 124.59 (relating to conditions requested by the Corps of Engineers and other government agencies).

§ 92a.87. Notice of reissuance of permits

 The proposed rulemaking would have established a public notice process for administrative extensions of permits. This portion of the proposed rulemaking has been deleted since the provisions regarding administrative extensions in proposed § 92a.75(b) (relating to reissuance of expiring permits) were deleted in the final-form rulemaking.

F. Summary of Comments and Responses Regarding the Proposed Rulemaking

 The Board approved the proposed rulemaking with a 30-day comment period on November 17, 2009. A notice of proposed rulemaking was published at 40 Pa.B. 847 (February 13, 2010). Public comments were accepted from February 13, 2010, until March 15, 2010. The Department received comments from 42 commentators during the public comment period.

 Detailed responses to the comments received are in the Comment and Response document. The major changes to the proposed rulemaking in response to comments received are summarized as follows:

 • Definitions. A number of definitions were revised as suggested by commentators. In addition, the definition of ''BMP—Best Management Practices'' was revised to better align the definition with the definition of BMP in other chapters.

 • Fees. A provision was added that requires that fees collected be deposited to the Clean Water Fund. In addition:

 ◦ The fee for ''mining activity'' was relocated within the fee tables to the section covering discharges of industrial wastewater.

 ◦ An exception to the $2,500 maximum fee for coverage under a general permit was added for a general permit provided for in Chapter 102. Certain fees for general permits in Chapter 102 will be based on the amount of disturbed area rather than a set fee.

 ◦ A provision was added allowing for the waiver of permit fees for any Federal or State agency or commission that provides funding or staffing to the Department for implementation of the NPDES program.

 • Treatment requirements. Certain treatment requirements that had been proposed were deleted from the final-form rulemaking. Specifically, the requirement for tertiary treatment as a minimum treatment requirement for discharges of treated sewage in certain water quality-limited situations was deleted. Minimum treatment requirements for conventional pollutants in industrial waste discharges were deleted. The incorporation of the secondary treatment standard for discharges of treated sewage was retained, but certain adjustments and exemptions from the requirements of the secondary treatment standard that are provided for in Federal regulations were reinstated in part.

 • Permit-by-rule. Provisions designed to provide for permit-by-rule coverage for application of pesticides, and also for certain small discharges of treated sewage, were deleted. These discharges will instead be covered under general permits.

 • New or increased discharges, or change of wastestream. This section is designed to assure that permittees inform the Department of important changes to their facility or wastestream and, if necessary, file for an amended or reissued permit. This section was revised to make it clear that only changes that could violate permit conditions, or that exceed previous representations on permit applications, need be reported.

 • Department action on permit applications. A subsection that provided that the Department will consider local and county plans and zoning when making permitting decisions was deleted. The Department will still consider plans and ordinances under the existing guidance (DEP-ID: 012-022-001, Policy for Consideration of Local Comprehensive Plans and Zoning Ordinances in DEP Review of Authorizations for Facilities and Infrastructure).

 • Conditions applicable to all permits. A provision designed to control certain conditions (floating materials, oil, grease, scum, sheen and substances that produce color, taste, odors, turbidity or settle to form deposits) has been revised to make it clear that many of these conditions are acceptable to the extent that they are provided for in the permit. Even if not provided for in the permit, they are all acceptable to the extent that they do not result in an observable effect on the condition of the receiving water. In addition, certain oral and written reporting requirements relating to incidents causing or threatening pollution were clarified based on comments received.

 • Administrative extensions of permits. New proposed language that applied to administrative extensions of permits was deleted so that there will not be new provisions regarding administrative extensions. Some commentators felt the new provision was confusing and subject to misinterpretation and the Department agreed.

 Comments were received that did not result in revisions to the final-form rulemaking are summarized as follows:

 • Fees. Many commentators noted that the proposed permit fee structure is excessive, unjustified or otherwise poorly conceived. While the concern of the regulated community is understandable, these fees are required as part of a fundamental shift to a self-sustaining program. They are reasonable and compare favorably with fees assessed by neighboring and other states.

 • Sanitary sewer overflows. Some commentators argued that these conditions, involving the overflow of raw, untreated or partially treated sewage into rivers and streams, should be allowable under some conditions. However, a sanitary sewer overflow is an inherently unacceptable condition and an immediate threat to public health.

 • Fecal coliform limits. Some commentators argued against a maximum level of fecal coliforms in effluent. However, as a measure of effective disinfection of treated sewage, fecal coliforms must be controlled on an ongoing basis.

 • Confidentiality of information. Some commentators suggested revisions to these provisions based on certain interpretations of applicable Federal or Commonwealth requirements. The existing provisions were determined to achieve a proper balance of the competing Federal and Commonwealth requirements.

 • Pollution prevention. Two commentators took issue with the pollution prevention provisions in the proposed rulemaking, but these provisions represent established Department policy. The Department is committed to integrate pollution prevention into its everyday practices and to encourage and assist permittees in implementing pollution prevention practices whenever possible.

 • Applicability of Chapter 92a and other chapters containing NPDES requirements. Some commentators believed that Chapter 92a does not or should not apply to their facilities or activities, which are point sources. Other commentators believed that requirements in other chapters that contain NPDES-based requirements do not have the full force of the NPDES regulation, Chapter 92a. The language in the regulations properly clarifies these issues and that clarification is both timely and appropriate.

 • New potable water supply (PWS) intakes. Comments were received to the effect that a new PWS should not automatically be accommodated by adjusting upstream permit limits when necessary, but that adjustments should be limited to certain pollutants or be justifiable based on a cost-benefit analysis. However, PWS is a protected use of this Commonwealth's rivers and streams and shall be protected as required by statute and regulation.

 • CWIS. Comments were received to the effect that the Department should not presume to require Best Technology Available (BTA) for CWIS before Federal regulations regarding CWIS are promulgated. The Department acknowledges the uncertainty, but it may not ignore its ongoing obligation to make BTA determinations.

 • Variances. Several commentators suggested that the Board should automatically incorporate by reference new variances provided for in Federal regulation. The Department has always taken the position that new Federal variances will be reviewed for appropriateness in this Commonwealth and for compliance with The Clean Streams Law.

 • Public notice. Two commentators felt that public notice at the site of a new or reissued permit is inappropriate and suggested a posting at the Department's offices, but posting at the site of the discharge is a fundamental component of public notice. Several commentators objected to the deletion of the requirement that the location of the first downstream PWS be included in public notice, but this provision has been deleted per Homeland Security requirements. The Department will still include this information in a public notice to the extent that it is allowable, but it is not appropriate to retain it as a regulatory requirement.

 • Procedure for civil penalty assessments. Two commentators proposed a major reworking of the procedure for civil penalty assessments, specifically in relation to the process of a penalty assessment hearing that would apply. Hearings regarding civil penalty assessments are based on a well established, Department-wide process and the commentators did not advance a compelling rationale as to why it should be changed.

G. Benefits, Costs and Compliance

Benefits

 Chapter 92a will help protect the environment, ensure the public's health and safety and promote the long-term sustainability of this Commonwealth's natural resources by ensuring that the water quality of rivers and streams is protected and enhanced. Chapter 92a implements the Federal Clean Water Act and The Clean Streams Law for point source discharges of treated wastewater to the rivers and streams of this Commonwealth.

 The revision primarily is designed to improve the effectiveness and efficiency of the NPDES permits program. The major problem with Chapter 92 was that it often used different language than the companion Federal regulations in 40 CFR Part 122 to describe requirements and it was often not clear if Chapter 92 requirements were more stringent than Federal requirements. The primary goal of the proposed rulemaking was to rebuild the regulations, starting with the Federal program requirements, incorporating additional or more stringent requirements only when there was clearly a basis for them. When feasible, Chapter 92a reverts to Federal terminology and definitions to minimize possible distortions or ambiguity. The Department expects that the reorganization of the NPDES regulation will have a substantive positive effect on the Commonwealth's NPDES program. Permittees and other members of the regulated community will find it easier to determine if the Commonwealth has additional requirements compared to Federal requirements. A supplemental benefit is that turnover in permit engineers and writers should be less disruptive since new staff should find it easier to understand the streamlined regulatory requirements.

 The final-form rulemaking also includes new provisions designed to keep the program current with recent changes at the Federal level. Some of these provisions are needed to ensure continued Federal approval of the Commonwealth's NPDES program by the EPA.

Compliance costs

 New requirements are not proposed in this final-form rulemaking that would require general increases in personnel complement, skills or certification. The new permit fees are the only broad-based new requirement that would increase costs for permittees, but the fees have been structured to assure that smaller facilities, that are more financially constrained and also have a lower potential environmental impact, are assessed the lowest fees. The new permit fees are relatively small on both a per gallon basis and a per customer basis, especially for larger facilities. The cost of securing and maintaining an NPDES permit to discharge treated wastewater to surface waters is small compared to the cost of operating these facilities. Moreover, these NPDES fees are very competitive with what is charged by other states. As an example, for a 1 million gallon per day sewage treatment plant, the annual fee will be $1,250 per year ($3.42 per day) in this Commonwealth. The annual fee for the same facility is $5,250 in Ohio, $7,500 in New York, $15,000 in Illinois, between $3,000 and $5,500 in Michigan and between $3,850 and $4,350 in Virginia.

 The final-form rulemaking addresses wastewater treatment facilities, including industrial wastewater treatment facilities, POTWs and other facilities that treat sanitary wastewater. The treatment requirements of the NPDES regulations affect operational costs to some extent, but the final-form rulemaking does not include new broad-based treatment requirements that would apply to most facilities. For most facilities, the compliance cost of the final-form rulemaking is limited to the revised application and annual fees. Current annual income from NPDES application fees is estimated at $750,000, without annual fees, versus a cost of running the program estimated at $5 million. The new fee structure is designed to return annual income of approximately $5 million, so that the total additional cost to the regulated community will be approximately $4.25 million per year.

Compliance Assistance Plan

 In cases when the receiving water is water quality-limited (impaired), wastewater treatment facilities may be required to upgrade their treatment capabilities. This would involve a significant compliance cost burden regarding engineering, construction and operating costs for upgrading the wastewater treatment facility. The Department's Technical and Financial Assistance Program in conjunction with the Pennsylvania Infrastructure Investment Authority offers financial assistance to eligible public water systems. This assistance is in the form of a low-interest loan, with some augmenting grant funds for hardship cases. Eligibility is based upon factors such as public health impact, compliance necessity and project/operational affordability. Other potential sources of financial assistance for wastewater treatment facility upgrades are as follows:

 • The Water Supply and Wastewater Infrastructure Program (PennWorks) administered by the Department of Community and Economic Development (DCED).

 • The Community Development and Block Grant Program administered by the DCED.

 • The Growing Greener New or Innovative Water/Wastewater Technology Grant Program administered by the Department.

Paperwork requirements

 Most public or commercial permittees will be required to submit annual fees to the Department.

 New forms, reports or other paperwork are not required under this final-form rulemaking, except for certain new requirements for CAAP facilities. CAAPs are fish hatcheries or fish farms. Under this final-form rulemaking, CAAPs would be required to have a written BMP plan to manage feed and nutrients to minimize excess feed that wastes resources and causes pollution without any benefit. Also, therapeutic drug use (for example, fungicides, antibiotics) shall be tracked and reported. The implementation of a BMP plan to manage feed costs and impacts is widely recognized as an appropriate industry practice and well run facilities already have them in place. Other options that were considered, such as establishing strict mass and concentration-based requirements for discharges of pollutants from CAAPs, were rejected as unnecessary and potentially burdensome. Facilities already are required to secure approval for discharge of any therapeutic drug that may be detectable in the effluent. The Department generally considers the use of these therapeutic drugs as safe and of low environmental concern, but tracking use rates will support investigation of any potential environmental impact of the drugs, or allegation of same.

H. Pollution Prevention

 The Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally-friendly materials, more efficient use of raw materials and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that achieve or move beyond compliance.

 This final-form rulemaking commits the Department to encouraging 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. Lower permit fees are assessed on facilities with lower average annual design flows, which effectively motivate dischargers to pursue point source discharge reductions by reducing the volume of wastewater that requires treatment. Section 92a.10 (relating to pollution prevention) incorporates the established hierarchy for pollution prevention in descending order of preference for environmental management of wastewater: (1) process change; (2) materials substitution; (3) reuse; (4) recycling; (5) treatment; and (6) disposal.

I. Sunset Review

 This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

J. Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 27, 2010, the Department submitted a copy of the notice of proposed rulemaking, published at 40 Pa.B. 847, to IRRC and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.

 Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on August 18, 2010, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 19, 2010, and approved the final-form rulemaking.

K. Findings

 The Board finds that:

 (1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided as required by law and all comments were considered.

 (3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 40 Pa.B. 847.

 (4) These regulations are necessary and appropriate for the administration and enforcement of the authorizing acts identified in Section C of this preamble.

L. Order

 The Board, acting under the authorizing statutes, orders that:

 (a) The regulations of the Department, 25 Pa. Code Chapters 92 and 92a, are amending by deleting §§ 92.1, 92.2, 92.2a—92.2d, 92.3—92.5, 92.5a, 92.7, 92.8a, 92.9, 92.11, 92.13, 92.13a, 92.15, 92.17, 92.21, 92.21a, 92.22, 92.23, 92.25, 92.31, 92.41, 92.51, 92.52a, 92.53, 92.55, 92.57, 92.59, 92.61, 92.63, 92.65, 92.67, 92.71, 92.71a, 92.72a, 92.73, 92.75, 92.77—92.79, 92.81—92.83 and 92.91—92.94; by adding §§ 92a.1, 92a.4—92a.7, 92a.9—92a.11, 92a.22, 92a.42—92a.46, 92a.49, 92a.52, 92a.53, 92a.55, 92a.71—92a.74, 92a.76, 92a.81—92a.83, 92a.86, 92a.88, 92a.91—92a.94 and 92a.101—92a.104 to read as set forth at 40 Pa.B. 847; and by adding §§ 92a.2, 92a.3, 92a.8, 92a.12, 92a.21, 92a.23—92a.36, 92a.41, 92a.47, 92a.48, 92a.50, 92a.51, 92a.54, 92a.61, 92a.62, 92a.75, 92a.84, 92a.85 and 92a.87 to read as set forth in Annex A.

 (b) The Chairperson of the Board shall submit this order, 40 Pa.B. 847 and Annex A to the Office of General Counsel and the Office of the Attorney General for review and approval as to legality and form, as required by law.

 (c) The Chairperson of the Board shall submit this order, 40 Pa.B. 847 and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.

 (d) The Chairperson of the Board shall certify this order, 40 Pa.B. 847 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (e) This order shall take effect immediately.

JOHN HANGER, 
Chairperson

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 5106 (September 4, 2010).)

 Fiscal Note: Fiscal Note 7-443 remains valid for the final adoption of the subject regulations.

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)

§ 92.1. (Reserved).

§ 92.2. (Reserved).

§§ 92.2a—92.2d. (Reserved).

§§ 92.3—92.5. (Reserved).

§ 92.5a. (Reserved).

§ 92.7. (Reserved).

§ 92.8a. (Reserved).

§ 92.9. (Reserved).

§ 92.11. (Reserved).

§ 92.13. (Reserved).

§ 92.13a. (Reserved).

§ 92.15. (Reserved).

§ 92.17. (Reserved).

§ 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.

A.	DEFINITIONS AND GENERAL PROGRAM REQUIRE MENTS
B.	PERMIT APPLICATION AND SPECIAL NPDES PRO GRAM REQUIREMENTS
C.	PERMITS AND PERMIT CONDITIONS
D.	MONITORING AND ANNUAL FEES
E.	TRANSFER, MODIFICATION, REVOCATION AND REIS SUANCE, TERMINATION OF PERMITS, REISSUANCE  OF EXPIRING PERMITS AND CESSATION OF DIS CHARGE
F.	PUBLIC PARTICIPATION
G.	PERMIT COORDINATION WITH THE ADMINISTRATOR
H.	CIVIL PENALTIES FOR VIOLATIONS OF NPDES PER MITS

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.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. The term includes activities, facilities, measures, planning or procedures used to minimize accelerated erosion and sedimentation and manage stormwater to protect, maintain, reclaim, and restore the quality of waters and the existing and designated uses of waters within this Commonwealth before, during and after earth disturbance activities.

 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 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—An 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.

 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.

 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 storm water 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 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.

 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, allow for a change in ownership or operational control of a facility, 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.

 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 decisionmaking) 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.

 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—A 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—A 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—A 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—A 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).

 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 into waters of this Commonwealth, including clearing and grubbing, grading and excavation activities involving 1 acre (0.4 hectares) or more of earth disturbance activity, or an earth disturbance activity on any portion, part or during any stage of, a larger common plan of development or sale that involves 1 acre (0.4 hectares) or more of earth disturbance activity 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) (i)—(ix) and (xi).

 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 term as defined in Chapter 96 (relating to water quality standards implementation).

 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 in subsection (b) 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 a Federal regulatory provision and a regulation 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, 125, and 132 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).

 (7) 132 (relating to water quality guidance for the Great Lakes system).

 (c) The Federal NPDES regulations in §§ 92a.4—92a.6, 92a.8, 92a.21, 92a.22, 92a.30—92a.35, 92a.41—92a.45, 92a.55, 92a.61, 92a.71—92a.74, 92a.85 and 92a.92 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 a Federal regulatory provision and a regulation of the Commonwealth, the provision expressly set out in this chapter shall be applied unless the Federal provision is more stringent.

§ 92a.8. Confidentiality of information.

 (a) The provisions of 40 CFR 122.7(b) (relating to confidentiality 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.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 or undertake other actions that are necessary 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 or undertake other actions that are necessary 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.

[Continued on next Web Page]

---

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

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

---