Subchapter B. PERMIT APPLICATION AND SPECIAL NPDES PROGRAM REQUIREMENTS
Sec.
92a.21. Application for a permit.
92a.22. Signatories to permit applications and reports.
92a.23. NOI for coverage under an NPDES general permit.
92a.24. New or increased discharges, or change of waste streams.
92a.25. Incomplete applications or incomplete NOIs.
92a.26. Application fees.
92a.27. Sewage discharges.
92a.28. Industrial waste discharges.
92a.29. CAFO.
92a.30. CAAP.
92a.31. Aquaculture projects.
92a.32. Stormwater discharges.
92a.33. Silviculture activities.
92a.34. Cooling water intake structures.
92a.35. New sources and new discharges.
92a.36. Department action on NPDES permit applications.§ 92a.21. Application for a permit.
(a) The provisions of 40 CFR 122.21(b), (g)(1)—(7), (9)—(13), (h), (i), (j), (k), (l), (m)(1) and (6), (p), (q) and (r) (relating to application for a permit (applicable to State programs, see § 123.25)) are incorporated by reference.
(b) Duty to apply. Persons wishing to discharge pollutants shall file a complete application for an individual permit at least 180 days before the date on which it is desired to commence the discharge of pollutants or within another period of time that the Department determines is sufficient to ensure compliance with the Federal Act and the State Act, including applicable water quality standards and effluent limitations or standards.
(c) Application forms. Applicants for permits shall submit applications on Department permit application forms. At a minimum, the following are required to be submitted by applicants for a permit, except as otherwise specified:
(1) One original and two copies of the complete application. The Department may require additional copies, if needed to complete the review process.
(2) The applicable permit application fee and other fees as set forth in § 92a.26 (relating to application fees).
(3) If required by the application, proof that a written notice of an application has been submitted to the municipality and county in which the activity is or will be located at least 30 days before the Department may take action on the application. This notice must satisfy the notification requirements of section 1905-A of The Administrative Code of 1929 (71 P. S. § 510-5) and the Pennsylvania Municipalities Planning Code (53 P. S. § § 10101—11107) if required.
(4) If required by the application, proof that public notice of the application has been published in a newspaper of general circulation in the locality in which the activity is or will be located once a week during a consecutive 4-week period.
(5) A description of the activities conducted by the applicant that require an NPDES permit; name, mailing address and location of the facility; up to four standard industrial codes (SIC) or North American Industry Classification System (NAICS) code that best reflect the principal products or services provided by the facility; the operator’s name, address, telephone number, ownership status and entity status; a listing of all Department and EPA environmental quality permits for the facility; a topographic or other map extending 1 mile beyond the boundaries of the facility or activity; and a brief description of the nature of the business.
(6) Documentation that the applicant is in compliance with all existing Department permits, regulations, orders and schedules of compliance, or that any noncompliance with an existing permit has been resolved by an appropriate compliance action or by the terms and conditions of the permit (including a compliance schedule set forth in the permit) consistent with § 92a.51 (relating to schedules of compliance) and other applicable Department regulations.
(d) Additional information. The Department may require other information or data needed to assess the discharges from the facility and any impact on receiving waters, and to determine whether to issue an NPDES permit, or what conditions or effluent limitations (including water quality based effluent limitations) to place in the permit. The additional information may include, but is not limited to:
(1) The results of an effluent assessment (or estimate for new dischargers or new sources), including a list of the mass and concentration of pollutants found (or estimated to be for new discharges or new sources) in the wastewater discharge, under Department protocols.
(2) Information and data relating to the biological, physical and chemical characteristics of waters and habitat immediately upstream and downstream of the proposed discharge, performed under a Department-approved protocol.
(3) The results of a waterbody assessment, under Department protocols, setting forth the impact (or potential impact) of the discharges on surface waters of this Commonwealth.
(4) The results of whole effluent toxicity testing, an instream cause/effect survey, or other tests or surveys as needed to determine the impact of a discharge on a waterbody performed under a Department-approved protocol.
(e) Addresses. The Department will publish at least annually a list of addresses to which applications and their accompanying papers shall be submitted.
(f) Supporting documentation. A person required to file an application shall also file additional modules, forms and applications, and supply data as specified by the Department. Additional modules, forms, applications and data are considered a part of the application.
Cross References This section cited in 25 Pa. Code § 16.52 (relating to Whole Effluent Toxicity Testing (WETT)); 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference).
§ 92a.22. Signatories to permit applications and reports.
The provisions of 40 CFR 122.22 (relating to signatories to permit applications and reports (applicable to State programs, see 123.25)) are incorporated by reference.
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference).
§ 92a.23. NOI for coverage under an NPDES general permit.
(a) Except as provided for in subsection (c), eligible dischargers, who wish to be covered by a general permit, shall file a complete NOI as instructed in the NOI. At a minimum, the NOI must identify each point source for which coverage under the general permit is requested; demonstrate that each point source meets the eligibility requirements for inclusion in the general permit; demonstrate that the discharge from the point sources, individually or cumulatively, will not cause or contribute to a violation of an applicable water quality standard established under Chapter 93 (relating to water quality standards) and include other information the Department may require. By signing the NOI, the discharger agrees to accept all conditions and limitations imposed by the general permit.
(b) If the NOI is acceptable, the Department will process the NOI in accordance with § 92a.54 (relating to general permits).
(c) General permits for POTWs, CSOs, CAFOs, MS4s, primary industrial facilities, and stormwater discharges associated with industrial activities must require that an NOI be submitted for each issuance and reissuance of coverage under the general permit. A general permit for any other category of discharges may be designed to allow discharges to be authorized to discharge without submitting an NOI for coverage under the general permit. Alternatively, such a general permit may require an initial NOI for issuance of coverage, but no subsequent NOI for reissuance of coverage. The Department will consider the following in deciding whether an NOI must be submitted for coverage under the general permit: the type of discharge; the potential for toxic and conventional pollutants in the discharge; the estimated number of discharges to be covered by the permit and the cumulative impact of the discharges. The public notice of the general permit will provide the reasons for not requiring the NOI.
Cross References This section cited in 25 Pa. Code § 92a.26 (relating to application fees); and 25 Pa. Code § 92a.54 (relating to general permits).
§ 92a.24. New or increased discharges, or change of waste streams.
(a) Sewage discharges and industrial waste discharges. Facility expansions, production increases, process modifications, or any change of wastestream, that may result in an increase of pollutants that have the potential to exceed ELGs or violate effluent limitations specified in the permit, or that may result in a new discharge, or a discharge of new or increased pollutants for which no effluent limitation has been issued, must be approved in writing by the Department before the permittee may commence the new or increased discharge, or change of wastestream. The Department will determine if a permittee will be required to submit a new permit application and obtain a new or amended permit before commencing the new or increased discharge, or change of wastestream.
(b) Stormwater discharges associated with construction activity. The permittee shall notify the Department before initiating any new or expanded disturbed area not identified in the permit application. The Department will determine if a permittee will be required to submit a new permit application and obtain a new or amended permit before the permittee may initiate construction activity in the new or expanded disturbed area.
§ 92a.25. Incomplete applications or incomplete NOIs.
The Department will not process an application or NOI that is incomplete or otherwise deficient. An application for an NPDES individual permit is complete when the Department receives an application form and supplemental information completed in accordance with this chapter and the instructions with the application. An NOI to be covered by an NPDES general permit issued by the Department is complete when the Department receives an NOI setting forth the information specified in the NOI and by the terms of the general permit.
§ 92a.26. Application fees.
(a) NPDES application fees are payable to the Commonwealth of Pennsylvania according to the fee schedule set forth in this section. All flows listed in this section are total annual average design flows for all discharges at a facility in million gallons per day (MGD).
(b) Applications fees for new individual NPDES permits are as follows.
Category Application Fee Single Residence Sewage Treatment Plant $200 Small Flow Treatment Facility $500 Minor Sewage Facility ‹ 0.05 MGD $1,000 Minor Sewage Facility ›= 0.05 MGD and
‹ 1.0 MGD$2,000 Minor Sewage Facility with CSO $5,000 Major Sewage Facility ›= 1.0 MGD and
‹ 5.0 MGD$7,500 Major Sewage Facility ›= 5.0 MGD $10,000 Major Sewage Facility with CSO $15,000 Minor Industrial Waste Facility not covered by ELG $3,000 Minor Industrial Waste Facility covered by ELG $6,000 Major Industrial Waste Facility ‹ 250 MGD $15,000 Major Industrial Waste Facility ›= 250 MGD $100,000 Industrial Stormwater $3,000 CAFO $500 MS4 $5,000 CAAP $3,000 Pesticides $3,000 Mining Activity $1,000 In addition, the application fee for reissuance of an individual NPDES permit associated with a mining activity shall be $500.
(c) (Reserved).
(d) (Reserved).
(e) Application fees for transfers of individual permits are:
Single residence sewage treatment plant $50 Small flow treatment facility $100 All other sewage facilities and CAFOs $200 Industrial waste, Industrial stormwater, MS4 and CAAP $500 (f) Application fees for amendments to individual permits are:
Amendment initiated by Department No charge Minor Amendment for single residence sewage treatment plant $50 Minor Amendment for small flow treatment facility $100 Minor amendment for all other facilities $200 Major amendment Same as annual fee established in § 92a.62 (relating to annual fees) (g) NOI fees for coverage under a general permit under § 92a.23 (relating to NOI for coverage under an NPDES general permit), including fees for amendments to or transfers of general permit coverage, will be established in the general permit. NOI fees may not exceed $5,000, except as provided in Chapter 102 (relating to erosion and sediment control). An eligible person shall submit to the Department the applicable NOI fee before the Department approves coverage under the general permit for that person. If the general permit allows payment of the NOI fee in annual increments, the eligible person shall, if required by the Department, submit the initial increment to the Department with the NOI before the Department approves coverage under the general permit.
(h) The Department will review the adequacy of the fees established in this section at least once every 3 years and provide a written report to the EQB. The report will identify any disparity between the amount of program income generated by the fees and the costs to administer these programs, and contain recommendations to increase fees to eliminate the disparity, including recommendations for regulatory amendments to increase program fees.
(i) Any Federal or State agency or independent State commission that provides funding to the Department for the implementation of the NPDES program through terms and conditions of a mutual agreement and any municipality that is currently designated as a financially distressed municipality by the Department of Community and Economic Development under the Municipalities Financial Recovery Act (53 P.S. § § 11701.101—11701.712) may be exempt from the fees in this section.
Authority The provisions of this § 92a.26 amended under sections 5(b)(1) and 6 of The Clean Streams Law (35 P.S. § § 691.5(b)(1) and 691.6); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 1920-A).
Source The provisions of this § 92a.26 amended August 27, 2021, effective August 28, 2021, 51 Pa.B. 5361. Immediately preceding text appears at serial pages (401834) and (352637) to (352638).
Cross References This section cited in 25 Pa. Code § 92a.21 (relating to application for a permit); and 25 Pa. Code § 92a.75 (relating to reissuance of expiring permits).
§ 92a.27. Sewage discharges.
(a) The following additional application requirements apply to new and existing sewage dischargers (including POTWs and privately owned treatment works), as applicable:
(1) The following sewage dischargers shall provide the results of whole effluent toxicity testing to the Department:
(i) Sewage dischargers with design influent flows equal to or greater than 1.0 million gallons per day.
(ii) Sewage dischargers with approved pretreatment programs or who are required to develop a pretreatment program.
(2) In addition to the sewage dischargers in paragraph (1), the Department may require other sewage dischargers to submit the results of toxicity tests with their permit applications, based on consideration of the following factors:
(i) The variability of the pollutants or pollutant parameters in the sewage effluent (based on chemical-specific information, the type of treatment facility and types of industrial contributors).
(ii) The dilution of the effluent in the receiving water (ratio of effluent flow to receiving stream flow).
(iii) Existing controls on point or nonpoint sources, including calculations of TMDLs for the waterbody segment, and the relative contribution of the sewage discharger.
(iv) Receiving surface water characteristics, including possible or known water quality impairment, and whether the sewage discharges to an estuary, one of the Great Lakes or a surface water that is classified as a High Quality Water or an Exceptional Value Water under Chapter 93 (relating to water quality standards).
(v) Other considerations including, but not limited to, the history of toxic impact and compliance problems at the sewage discharge facility, which the Department determines could cause or contribute to adverse water quality impacts.
(3) For sewage dischargers required under paragraph (1) or (2) to conduct toxicity testing, the EPA’s methods or other protocols approved by the Department, which are scientifically defensible and sufficiently sensitive to detect aquatic toxicity and approved by the Department, shall be used. The testing shall have been performed since the last NPDES permit reissuance, or when requested by the Department, whichever occurred later.
(b) CSO dischargers shall submit the following information:
(1) The results of an evaluation determining the frequency, extent and cause of the CSO discharge, including identifying the points of inflow into combined systems.
(2) An evaluation of the water quality impacts of the CSO discharge on receiving waters.
(3) A description of the nine minimum controls (NMCs) described in the EPA publication entitled ‘‘Combined Sewer Overflows—Guidance for Nine Minimum Controls’’ (EPA publication number 832-B-95-003 (September 1995) as amended or updated) used at the facility to minimize or eliminate the CSO discharge impact on receiving water quality.
(4) A long-term control plan (LTCP) to minimize or eliminate the CSO discharge with an implementation schedule.
(5) An update on the progress made with the implementation of the LTCP and future activities with schedules to comply with water quality standards.
§ 92a.28. Industrial waste discharges.
(a) Existing industrial discharges. Dischargers of industrial waste from sources other than new sources or new discharges subject to subsection (b), nonprocess wastewater discharges subject to subsection (c) and stormwater discharges associated with industrial activity subject to § 92a.32 (relating to stormwater discharges), shall submit the applicable information required to be submitted under 40 CFR 122.21(g)(1)—(7) and (g)(9)—(13) (relating to application for a permit (applicable to State programs, see § 123.25)).
(b) New sources and new discharges. Except for new discharges of industrial facilities that discharge nonprocess wastewater subject to subsection (c) and new discharges of stormwater associated with industrial activity subject to § 92a.32, new discharges and new sources applying for NPDES permits shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(k).
(c) Nonprocess industrial waste discharges. Except for stormwater discharges associated with industrial activity subject to § 92a.32, industrial waste dischargers applying for NPDES permits that discharge only nonprocess wastewater not regulated by an effluent limitation guideline or new source performance standard shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(h).
§ 92a.29. CAFO.
(a) Except as provided in subsections (b)—(d), each CAFO shall have applied for an NPDES permit on the following schedule, and shall have obtained a permit:
(1) By May 18, 2001, for any CAFO in existence on November 18, 2000, with greater than 1,000 AEUs.
(2) By February 28, 2002, for any other CAFO in existence on November 18, 2000.
(3) Prior to beginning operation, for any new or expanded CAFO that began operation after November 18, 2000, and before October 22, 2005.
(b) A poultry operation that is a CAFO, which is in existence on October 22, 2005, and that is not using liquid manure handling systems, shall apply for an NPDES permit no later than the following, and shall obtain a permit:
(1) By April 24, 2006, for operations with 500 or more AEUs.
(2) By January 22, 2007, for all other operations.
(c) After October 22, 2005, a new operation, and an existing operation that will become a CAFO due to changes in operations such as additional animals or loss of land suitable for manure application, shall do the following:
(1) Apply for an NPDES permit at least 180 days before the operation commences or changes.
(2) Obtain an NPDES permit prior to commencing operations or making changes, as applicable.
(d) Other operations not described in subsections (a)—(c) that will become newly regulated as a CAFO for the first time due to the changes in the definition of a CAFO in § 92a.2 (relating to definitions) shall apply for a permit by April 24, 2006, and obtain a permit.
(e) The NPDES permit application requirements include, but are not limited to, the following:
(1) A nutrient management plan meeting the requirements of Chapter 83, Subchapter D (relating to nutrient management) and approved by the county conservation district or the State Conservation Commission. The plan must include:
(i) Manure application setbacks for the CAFO of at least 100 feet, or vegetated buffers at least 35 feet in width.
(ii) A statement that manure that is stockpiled for 15 consecutive days or longer shall be under cover or otherwise stored to prevent discharge to surface water during a storm event up to and including the appropriate design storm for that type of operation under § 91.36(a)(1) and (5) (relating to pollution control and prevention at agricultural operations).
(2) An erosion and sediment control plan meeting the requirements of Chapter 102 (relating to erosion and sediment control).
(3) When required under § 91.36(a), a water quality management permit, permit application, approval or engineer’s certification, as required.
(4) A preparedness, prevention and contingency plan for pollutants related to the CAFO operation.
(5) A water quality management permit application as required under this chapter and Chapter 91 (relating to general provisions), when treatment facilities that would include a treated wastewater discharge are proposed.
(6) Measures to be taken to prevent discharge to surface water from storage of raw materials such as feed and supplies. These measures may be included in the nutrient management plan.
Cross References This section cited in 25 Pa. Code § 91.36 (relating to pollution control and prevention at agricultural operations); and 25 Pa. Code § 96.8 (relating to use of offsets and tradable credits from pollution reduction activities in the Chesapeake Bay Watershed).
§ 92a.30. CAAP.
The provisions of 40 CFR 122.24 (relating to concentrated aquatic animal production facilities (applicable to State NPDES programs, see § 123.25)) are incorporated by reference.
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference).
§ 92a.31. Aquaculture projects.
The provisions of 40 CFR 122.25, 125.10 and 125.11 (relating to aquaculture projects (applicable to State NPDES programs, see 123.25); and criteria for issuance of permits to aquaculture projects) are incorporated by reference.
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference).
§ 92a.32. Stormwater discharges.
(a) The provisions of 40 CFR 122.26(a), (b), (c)(1), (d), (e)(1), (3)—(9), (f) and (g) (relating to storm water discharges (applicable to State NPDES programs, see § 123.25)) and 122.30—122.37 are incorporated by reference.
(b) No exposure stormwater discharges. Discharges composed entirely of stormwater are not stormwater discharges associated with industrial activity if there is ‘‘no exposure’’ of industrial materials and activities to stormwater and the discharger satisfies the conditions in 40 CFR 122.26(g). A facility or activity with no stormwater discharges associated with industrial activity may qualify for a conditional exclusion from a permit, provided that the facility or activity does not discharge to a surface water classified as a High Quality Water or an Exceptional Value Water under Chapter 93 (relating to water quality standards). To qualify for the conditional exclusion from a permit, the responsible person shall complete, sign and submit to the Department the appropriate permit application or NOI, including the appropriate application or NOI fee, and a ‘‘No Exposure Certification’’ on forms available from the Department at least once every 5 years.
(c) Municipal separate storm sewer systems. The operator of a discharge from a large, medium or small municipal separate storm sewer shall submit in its permit application or NOI the information required to be submitted under 40 CFR Part 122 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System). Permits for discharges from municipal separate storm sewer systems are not eligible for a ’’no exposure’’ conditional exclusion from a permit under subsection (b). The operator of a discharge from a small MS4 may seek a waiver from NPDES permit requirements under 40 CFR 122.32(c) (relating to as an operator of a small MS4, am I regulated under the NPDES storm water program?). To request this waiver, the operator of the small MS4 shall complete, sign and submit to the Department the appropriate permit application or NOI, the appropriate permit application or NOI fee and an application for the waiver on forms available from the Department at least once every 5 years.
(d) Stormwater discharges associated with construction activity. Applicants for individual NPDES permits for the discharge of stormwater associated with construction activity shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(g)(7) (relating to application for a permit (applicable to State programs, see § 123.25)) and 122.26(c)(1). In addition, stormwater dischargers shall submit information required in Chapter 102 (relating to erosion and sediment control) as appropriate. Permits for stormwater discharges associated with construction activity are not eligible for a ‘‘no exposure’’ conditional exclusion from a permit under subsection (b).
(e) Stormwater discharges associated with industrial activity. Applicants for individual NPDES permits for the discharge of stormwater associated with industrial activity shall submit the information required to be submitted, as applicable, under 40 CFR 122.21(g)(7) and 122.26(c)(1).
Authority The provisions of this § 92a.32 amended under sections 5(b)(1) and 6 of The Clean Streams Law (35 P.S. § § 691.5(b)(1) and 691.6); and section 1920-A of The Administrative Code (35 P.S. § 1920-A).
Source The provisions of this § 92a.32 amended August 27, 2021, effective August 28, 2021, 51 Pa.B. 5361. Immediately preceding text appears at serial pages (352641) to (352642).
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference); and 25 Pa. Code § 92a.28 (relating to industrial waste discharges).
§ 92a.33. Silviculture activities.
The provisions of 40 CFR 122.27 (relating to silvicultural activities (applicable to State NPDES programs, see § 123.25)) are incorporated by reference.
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference).
§ 92a.34. Cooling water intake structures.
(a) The provisions of 40 CFR 125.80—125.89 (relating to requirements applicable to cooling water intake structures for new facilities under section 316(b) of the Act) are incorporated by reference.
(b) The location, design, construction and capacity of cooling water intake structures, in connection with a point source, must reflect the BTA for minimizing adverse environmental impacts in accordance with the State Act and section 316(b) of the Federal Act (33 U.S.C.A. § 1326(b)).
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference).
§ 92a.35. New sources and new discharges.
The provisions of 40 CFR 122.29 (relating to new sources and new dischargers) are incorporated by reference.
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference).
§ 92a.36. Department action on NPDES permit applications.
The Department will not issue an NPDES permit unless the application is complete and the documentation submitted meets the requirements of this chapter. The applicant, through the application and its supporting documentation, shall demonstrate that the application is consistent with:
(1) Plans approved by the Department under the Pennsylvania Sewage Facilities Act (35 P. S. § § 750.1—750.20), wastewater facility capabilities, service areas, selected alternatives and any adverse effects on the environment of reasonably foreseeable future development within the area of the project resulting from construction of the wastewater facility.
(2) Other applicable environmental laws and regulations administered by the Commonwealth, Federal environmental statutes and regulations, and if applicable, river basin commission requirements created by interstate compact.
(3) Standards established for the wastewater facilities through permits to implement the requirements of 40 CFR Parts 122, 123, 124 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System; State program requirements; and procedures for decisionmaking) and the Federal Act.
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