2181 NPDES general permit for stormwater discharges associated with construction activities (PAG-2); 2002 amendment

NPDES General Permit for Stormwater Discharges Associated with Construction Activities (PAG-2); 2002 Amendment

[32 Pa.B. 6000]

   The Department of Environmental Protection (Department) is amending and renewing the National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges Associated with Construction Activities (PAG-2) which was originally issued at 22 Pa.B. 5063 (October 10, 1992) and amended at 27 Pa.B. 5143 (October 4, 1997). The Department published a notice of proposed revisions to PAG-2 at 32 Pa.B. 2375 (May 11, 2002), with a 30 day public comment period. In addition, the Department also published a notice of the proposed PAG-14 for NPDES permit coverage of small construction activities at 32 Pa.B. 3990 (August 10, 2002) with a 30-day public comment period.

Public Comment and Response

   The Department received comments regarding the proposed revisions to PAG-2 from nine individuals representing the oil and gas development industry, environmental organizations, county conservation districts and State and Federal agencies. The Department also received comments regarding the proposed PAG-14 from 163 individuals representing the general public, oil and gas development industry, environmental organizations, consultants, county conservation districts and State and Federal agencies. The following is a summary of some of the major comments and the Department's responses:

   A commentator questioned if technical reviews of Post Construction Stormwater Management (PCSM) Plans submitted with an Notice of Intent (NOI) for General Permit coverage will be required. Generally a technical review of the PCSM Plan will not be conducted. The applicant is required to certify that the PCSM Plan meets local ordinance and PAG-2 permit requirements. In special protection waters the Department's regional office will perform technical reviews of PCSM Plans submitted as part of an Individual Permit application.

   One commentator questioned the Department's authority to incorporate the PCSM Plan requirements into the PAG-2 permit revisions. Existing State and Federal laws and regulations authorize post-construction stormwater management planning requirements as a condition of the NPDES permit for stormwater discharges associated with construction activities.

   Several commentators questioned whether the Department is required to impose the new PCSM Plan requirements on all earth disturbance activities that would be subject to the NPDES General Permit. Specifically, the commentators did not believe that a separate PCSM Plan is needed to supplement the existing post-construction requirements of the Erosion and Sediment Control (E&S) Plan for development projects where the restored land surface will reflect the original topography, vegetative cover and stormwater infiltration regime of the preconstruction project area. The final PAG-2 requires the development of a PCSM Plan for all projects. The Department recognizes the level of analysis and detail required for the development of PCSM Plans for minimal or low impact projects may not be as great and has provided provisions in the NOI accordingly.

   A commentator recommended that the proposed language should explicitly track the language of 25 Pa. Code §§ 92.81(a)(8) and 92.83(b)(9) (relating to general NPDES permits; and inclusion of individual dischargers in general NPDES permits) to put the permittee on explicit notice that the general permit cannot legally be utilized in waters that have a designated or existing use classification of High Quality or Exceptional Value waters. The Department has revised the final permit as recommended by amending the permit language as follows: ''. . . prohibited under 25 Pa. Code Chapter 92, including waters that have a designated or existing use classification of High Quality (HQ) or Exceptional Value (EV) Waters.'' (Emphasis added.)

   A commentator recommended that the proposed language in the permit regarding activities that are not eligible for coverage under the general permit should more closely track the legal requirements at 25 Pa. Code § 92.83(b)(3). The Department has revised the final permit accordingly.

   One commentator suggested that the Department clarify how termination can occur in the face of post-construction stormwater management responsibilities. As required by both State (25 Pa. Code Chapter 102 (relating to erosion control)) and Federal regulations (40 CFR Part 122), PAG-2 provides coverage only for stormwater discharged from an industrial activity (construction activity). Unless otherwise provided under 40 CFR 122.26(b)(14), NPDES permit coverage for a regulated construction activity is no longer required once the post-construction Best Management Practices (BMPs) are established, the PCSM Plan is implemented, the site is stabilized and construction stormwater discharges are eliminated.

   One commentator questioned the relevance of the August 2001 date regarding approved Act 167 Plans and PCSM Plans and suggested that the method to achieve consistency over time is through mandated Act 167 updates and that most municipal ordinances adopted under pre-August 2001 Act 167 Plans contain requirements critical to a comprehensive PCSM Plan. The Department has corrected the references to the August 2001 dates to Part C, Section 5 of the PAG-2 permit and to Section E of the NOI Instructions. The final permit makes reference to counties that have adopted Act 167 Stormwater Management Plans and that require the municipalities to adopt stormwater ordinances that incorporate measures to protect and maintain existing uses and protect and maintain water quality to maintain those existing uses. In areas where Act 167 Stormwater Management Plans exist and are supported by local ordinances, the applicant must design the PCSM Plan in accordance with the standards established under the ordinances.

   In addition, a number of individuals commented on the draft PAG-14 permit document generally that:

   *  The permit fails to provide meaningful public participation opportunities for interested citizens. The Department should be encouraging, not inhibiting, public participation.

   *  The public has no opportunity to review or comment upon plans for erosion and sediment control for up to 5 acres of earth disturbance.

   *  The permit allowed persons to disturb up to 5 acres without having to submit its plans for erosion and sediment control to the Department or a delegated Conservation District (CD) for review.

   *  The permit allows the Department and delegated CDs to approve up to 5 acres of earth disturbance without having to review plans for erosion and sediment control.

   *  The permit fails to require compliance history information from persons proposing to disturb up to 5 acres of earth.

   *  The permit is in essence a legally unauthorized ''permit-by-rule'' rather than a General NPDES permit.

   *  The permit omits many basic elements and standard conditions required to be included in NPDES permits by State and Federal NPDES regulations.

   In response to comments received, PAG-14 has been withdrawn. The Federal NPDES Phase I (5 acres and greater) and Phase II (1 acre to less than 5 acres with a point source discharge to a surface water) stormwater requirements for construction activities have been combined into the amended PAG-2. The Department believes that the administration of the Phases I and II NPDES requirements for stormwater discharges associated with construction activities utilizing one general permit document is more efficient and effective for the regulated community as well as the CDs and Department regional offices.

   After consideration of the comments for both proposals, the Department has amended the PAG-2 permit as follows:

   *  The amended general permit will generally apply to eligible existing and new stormwater discharges associated with construction activities including clearing and grading and excavation activities involving 5 acres or more of earth disturbance or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves 5 acres or more of earth disturbance over the life of the project.

   *  The amended general permit also incorporates the Federal Phase II requirements of NPDES permit coverage for persons proposing new or conducting existing small construction activities, including clearing, grading and excavation activities involving 1 acre to less than 5 acres of earth disturbance or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves 1 acre to less than 5 acres of earth disturbance over the life of the project, and that has a point source discharge to surface waters of this Commonwealth.

   *  General information and requirements have been added to clarify the information required for a PAG-2 permit.

   *  The PAG-2 permit requires the submission of an NOI that includes general operator, site information and a certification that a written E&S Plan, Preparedness, Prevention and Contingency Plan and PCSM Plan have been developed and BMPs will be implemented to protect the water quality of the receiving surface waters of this Commonwealth.

   *  The PAG-2 permit requires submission of a Notice of Termination when final stabilization of the site has been achieved as defined in PAG-2, or stormwater construction runoff is no longer being discharged from the construction activities.

   *  The NOI for a PAG-2 permit requires the submission of a complete and technically adequate E&S Plan and PCSM Plan.

   *  The application fee for PAG-2 permit coverage will be $250. The application fee for individual permits will remain at $500. State agencies and instrumentalities are exempt from the application fees.

New Authorizations for Stormwater Discharges Associated with Construction Activities

   Persons requesting authorization on or after December 10, 2002, to discharge stormwater associated with construction activities must apply for coverage under PAG-2 (2002 amendment) accompanied by a $250 filing fee, or apply for coverage under PAG-2 accompanied with a $500 filing fee.

   The amendments to this general permit have been sent to the EPA Regional Administrator for Region III. Persons wishing to obtain a copy of this general permit, notice of intent forms, instructions and other related documents should request them from the Department's Bureau of Watershed Management, Division of Waterways, Wetlands and Erosion Control, one of the Department's Regional Offices, a local county conservation district office or the Department's website http://www.dep.state.pa.us. TDD users may telephone the Department through the AT&T Relay Service at [phone].

DAVID E. HESS,   
Secretary

[Pa.B. Doc. No. 02-2181. Filed for public inspection December 6, 2002, 9:00 a.m.]