Subchapter F. PUBLIC PARTICIPATION
Sec.
92a.81. Public access to information.
92a.82. Public notice of permit applications and draft permits.
92a.83. Public notice of public hearing.
92a.84. Public notice of general permits.
92a.85. Notice to other government agencies.
92a.86. Notice of issuance or final action on a permit.
92a.87. Notice of reissuance of permits.
92a.88. Notice of appeal.
Notes of Decisions Citizen failed to exhaust his administrative remedies, and thus was barred from challenging the Department’s issuance of an NPDES permit to water service provider for a waterline replacement project, in an action for declaratory or injunctive relief. Citizen admitted that he did not participate in the public comment period or request a public hearing before the Department, or at any time appeal the Department’s issuance of the permit to the Environmental Hearing Board. Citizen also failed to allege that he justifiably relied on any purported misrepresentation by water service provider in its application for an NPDES permit for a waterline replacement project, as required to state a claim against provider for intentional misrepresentation. Feudale v. Aqua Pennsylvania, Inc., 122 A.3d 462 (Pa. Cmwlth. 2015).
§ 92a.81. Public access to information.
(a) NPDES forms and public comments will be available to the public for inspection and copying.
(b) Information relating to NPDES permits, not determined to be confidential under § 92a.8 (relating to confidentiality of information), may be inspected at the Department office processing the information. Copying facilities and services will be available for a reasonable fee, or other arrangements for copying may be made with the Department office.
Cross References This section cited in 25 Pa. Code § 92a.87 (relating to notice of reissuance of permits); 25 Pa. Code § 93.4c (relating to implementation of antidegradation requirements); and 25 Pa. Code § 93.8d (relating to development of site-specific water quality criteria).
§ 92a.82. Public notice of permit applications and draft permits.
(a) Public notice of every complete application for an NPDES permit will be published in the Pennsylvania Bulletin. The contents of public notice of applications for NPDES permits will include at least the following:
(1) The name and address, including county and municipality, of each applicant.
(2) The permit number and type of permit applied for.
(3) The stream name of the waterway to which each discharge is proposed.
(4) The address of the State or interstate agency premises at which interested persons may obtain further information, request a copy of the NPDES forms and related documents.
(b) A public notice of every new draft individual permit, or major amendment to an individual permit, will be published in the Pennsylvania Bulletin. This public notice will also be posted by the applicant near the entrance to the premises of the applicant, and at the facility or location where the discharge exists, if the facility or location is remote from the premises of the applicant. The contents of public notice for draft NPDES permits will include at least the following in addition to those specified in subsection (a):
(1) A brief description of each applicant’s activities or operations that result in the discharge described in the application.
(2) The name and existing use protection classification of the receiving surface water under § 93.3 (relating to protected water uses) to which each discharge is made and a short description of the location of each discharge on the waterway indicating whether the discharge is a new or an existing discharge.
(3) A statement of the tentative determination to issue or deny an NPDES permit for the discharge described in the application. If there is a tentative determination to issue a permit, the determination will include proposed effluent limitations for those effluents proposed to be limited, a proposed schedule of compliance including interim dates and requirements for meeting the proposed effluent limitations and a brief description of any proposed special conditions that will have a significant impact upon the discharge described in the application.
(4) The rate or frequency of the proposed discharge; if the discharge is continuous, the average daily flow in GPD or MGD.
(5) A brief description of the procedures for making final determinations, including the 30-day comment period required by subsection (d) and any other means by which interested persons may influence or comment upon those determinations.
(c) The provisions of 40 CFR 124.57(a) (relating to public notice) shall be followed when there is a Section 316(a) request for a thermal discharge.
(d) There will be a 30-day period following publication of notice under subsection (b) during which written comments may be submitted by interested persons before the Department makes its final determinations. Written comments submitted during the 30-day comment period will be retained by the Department and considered in making the final determinations. The period for comment may be extended at the discretion of the Department for one additional 15-day period. The Department will provide an opportunity for the applicant, any affected State, any affected interstate agency, the Administrator or any interested agency, person or group of persons to request or petition for a public hearing with respect to the application. The request or petition for public hearing filed within the 30-day period allowed for filing of written comments must indicate the interest of the party filing the request and the reasons why a hearing is warranted. A hearing will be held if there is a significant public interest, including the filing of requests or petitions for the hearing. Instances of doubt should be resolved in favor of holding the hearing. Any hearing brought under this subsection will be held in the geographical area of the proposed discharge or other appropriate area and may, as appropriate, consider related groups of permit applications.
(e) The Department will prepare and send to any person, upon request, following public notice of draft permit, a fact sheet with respect to the draft permit described in the public notice. The contents of the fact sheet will include at least the information contained in § 92a.53 (relating to documentation of permit conditions).
Cross References This section cited in 25 Pa. Code § 92a.85 (relating to notice to other government agencies); 25 Pa. Code § 92a.86 (relating to notice of issuance or final action on a permit); 25 Pa. Code § 92a.87 (relating to notice of reissuance of permits); 25 Pa. Code § 93.4c (relating to implementation of antidegradation requirements); 25 Pa. Code § 93.8d (relating to development of site-specific water quality criteria); and 25 Pa. Code § 96.8 (relating to use of offsets and tradable credits from pollution reduction activities in the Chesapeake Bay Watershed).
§ 92a.83. Public notice of public hearing.
Notice of a public hearing will be published in the Pennsylvania Bulletin, and in at least one newspaper of general circulation within the geographical area of the discharge and will be sent to all persons or government agencies that received a copy of the fact sheet for the draft permit. All of the notices of a public hearing will be published at least 30 days before the hearing. Notice of a public hearing will include at least the following:
(1) The name, address and phone number of the agency holding the public hearing.
(2) The name and address of each applicant whose application will be considered at the hearing.
(3) The name of the waterway to which each discharge is proposed and a short description of the location of each discharge on the waterway.
(4) A brief reference to the public notice published in the Pennsylvania Bulletin for each application, including identification number and date of issuance.
(5) Information regarding the time and location for the hearing.
(6) The purpose of the hearing.
(7) A concise statement of the issues raised by the persons requesting the hearing.
(8) The address and phone number of the premises at which interested persons may obtain further information, request a copy of each fact sheet prepared under 92a.53 (relating to documentation of permit conditions), and inspect and copy NPDES forms and related documents.
(9) A brief description of the nature of the hearing, including the rules and procedures to be followed.
Cross References This section cited in 25 Pa. Code § 92a.87 (relating to notice of reissuance of permits); 25 Pa. Code § 93.4c (relating to implementation of antidegradation requirements); and 25 Pa. Code § 93.8d (relating to development of site-specific water quality criteria).
§ 92a.84. Public notice of general permits.
(a) Public notice of every proposed general permit will be published in the Pennsylvania Bulletin. The contents of the public notice will include at least the following:
(1) The name, address and phone number of the agency issuing the public notice.
(2) A clear and specific description of the category of point source discharges eligible for coverage under the proposed general permit.
(3) A brief description of the reasons for the Department’s determination that the category of point source discharges is eligible for coverage under a general permit in accordance with these standards.
(4) A brief description of the terms and conditions of the proposed general permit, including applicable effluent limitations, BMPs and special conditions.
(5) A brief description of the procedures for making the final determinations, and other means by which interested persons may influence or comment on those determinations.
(6) The address and phone number of the Commonwealth agency at which interested persons may obtain further information and a copy of the proposed general permit.
(7) The NOI fee for coverage under the general permit.
(b) There will be a 30-day period following publication of notice during which written comments may be submitted by interested persons before the Department makes its final determinations. Written comments submitted during the 30-day comment period will be retained by the Department and considered in making the final determinations. The period for comment may be extended at the discretion of the Department for one additional 15-day period. The Department will provide an opportunity for any interested person or group of persons, any affected State, any affected interstate agency, the Administrator or any interested agency, to request or petition for a public hearing with respect to the proposed general permit. The request or petition for public hearing, which must be filed within the 30-day period allowed for filing of written comments, must indicate the interest of the party filing the request and the reasons why a hearing is warranted. A hearing will be held if there is a significant public interest, including the filing of requests or petitions for the hearing.
(c) Upon issuance of a general permit, the Department will place a notice in the Pennsylvania Bulletin of the availability of the general permit. The notice of availability will indicate one of the following:
(1) An NOI is not required for coverage under the general permit.
(2) A notice will be published in the Pennsylvania Bulletin of each NOI under an applicable general permit, and of each approval for coverage under a general permit.
(3) A notice will be published in the Pennsylvania Bulletin of every approval of coverage only.
§ 92a.85. Notice to other government agencies.
(a) The provisions of 40 CFR 124.59 (relating to conditions requested by the Corps of Engineers and other government agencies) are incorporated by reference.
(b) The Department will do the following:
(1) Provide a subscription to the Pennsylvania Bulletin for any other states whose waters may be affected by the issuance of an NPDES permit, to any interstate agency having water quality control authority over water that may be affected by the issuance of an NPDES permit, and to all Pennsylvania District Engineers of the Army Corps of Engineers.
(2) At the time of issuance of public notice under § 92a.82 (relating to public notice of permit applications and draft permits), transmit to other states, whose waters may be affected by the issuance of an NPDES permit, a copy of fact sheets prepared under § 92a.53 (relating to documentation of permit conditions). Upon request, the Department will provide the states with a copy of the application and a copy of the draft permit. Each affected state will be afforded an opportunity to submit written recommendations to the Department and the Administrator. The Department will consider these comments during preparation of the permit decision. If the Department decides not to incorporate any written recommendations thus received, it will provide a written explanation of its reasons for deciding not to accept any of the written recommendations.
(3) At the time of issuance of public notice under § 92a.82, transmit to any interstate agency having water quality control authority over waters that may be affected by the issuance of a permit a copy of fact sheets prepared under § 92a.53. Upon request, the Department will provide the interstate agency with a copy of the application and a copy of the draft permit. The interstate agency shall have the same opportunity to submit recommendations and to receive explanations in paragraph (2).
Cross References This section cited in 25 Pa. Code § 92a.3 (relating to incorporation of Federal regulations by reference); 25 Pa. Code § 92a.87 (relating to notice of reissuance of permits); 25 Pa. Code § 93.4c (relating to implementation of antidegradation requirements); and 25 Pa. Code § 93.8d (relating to development of site-specific water quality criteria).
§ 92a.86. Notice of issuance or final action on a permit.
Following the 30-day comment period described in § 92a.82(d) (relating to public notice of permit applications and draft permits), and any public hearing, on the permit application and draft permit, the Department will take action on the permit. Comments received during the comment period will be addressed and documented by the Department, and made available for public review. Final action will be published in the Pennsylvania Bulletin.
Cross References This section cited in 25 Pa. Code § 92a.87 (relating to notice of reissuance of permits).
§ 92a.87. Notice of reissuance of permits.
Notice of reissuance of permits will be accomplished as specified in § § 92a.81—92a.83, 92a.85 and 92a.86 for any draft individual permit.
§ 92a.88. Notice of appeal.
When the determination of the Department to issue or deny an NPDES permit is appealed to the EHB, notice of the appeal, and notice of the hearing date, if any, will be published in the Pennsylvania Bulletin. In addition, notice of the Department’s final action, arrived at either through settlement or as the result of a decision of the EHB, will be published in the Pennsylvania Bulletin.
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