[25 PA. CODE CHS. 91, 97 AND 101] Wastewater Management [27 Pa.B. 4343] The Environmental Quality Board (Board) proposes to amend Chapters 91 and 97 (relating to general provisions; and industrial wastes) and delete Chapter 101 (relating to special water pollution regulations). The amendments are proposed as a result of the Department of Environmental Protection's (Department) Regulatory Basics Initiative and Executive Order 1996-1 (Regulatory Review and Promulgation). This proposed rulemaking is intended to meet the goals of these initiatives by correcting identified regulatory deficiencies.
This proposal was adopted by the Board at its meeting of June 17, 1997.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Milt Lauch, Chief, Division of Wastewater Management, P. O. Box 8465, Rachel Carson State Office Building, Harrisburg, PA 17105-8465, (717)787-8184, or William J. Gerlach, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717)787-7060. Information regarding submitting comments on this proposal appears in Section J of this Preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department's Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The proposed rulemaking is being made under the authority of section 5 of The Clean Streams Law (35 P. S. § 691.5) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510.20).
D. Background and Purpose
These proposed amendments are intended to support the Department's pollution prevention strategies, eliminate regulations which are more stringent than Federal rules unless justified by a compelling and articulable Commonwealth interest or required by State law, more easily apply new green technologies, eliminate provisions which impose disproportionate economic costs and eliminate obsolete regulations. These changes are likely to affect industries and individuals proposing new or innovative ways to prevent pollution through modifications to waste streams or wastewater processes and those proposing new technologies to treat wastewater by eliminating regulatory barriers to these activities. In addition, the elimination of obsolete regulations will simplify and clarify the existing regulations for those applying for permits for wastewater treatment facilities. The proposed consolidation of Chapter 101 into Chapter 91 will provide a single source of regulations regarding related wastewater issues. The proposed rulemaking also transfers several sections from Chapter 97 to Chapter 91.
The proposed amendments were reviewed and approved by the Water Subcommittee of the Air and Water Quality Technical Advisory Committee (Committee) on February 20, 1997.
E. Summary of Regulatory Requirements
§ 91.1 (relating to definitions)
Section 91.1 proposes new or revised definitions related to the Department's wastewater program intended to clarify previously undefined terms used in the regulations. Terms newly defined include: ''application,'' ''facility,'' ''Federal act,'' ''general water quality management permit or general permit,'' ''industrial waste,'' ''notice of intent (NOI),'' ''National Pollutant Discharge Elimination System (NPDES) permit,'' ''operator,'' ''owner,'' ''person,'' ''pollutant,'' ''schedule of compliance,'' ''sewage,'' ''single residence sewage treatment plant,'' ''stormwater,'' ''wastewater impoundment,'' ''waters of this Commonwealth'' and ''water quality management permit.'' The definitions of ''Department'' and ''EPA'' are proposed to be deleted since these definitions exist in Chapter 1. Inclusion of the new definitions would provide a single source of uniform definitions directly related to the regulations and program administration.
§ 91.5 (relating to pollution prevention)
Proposed text of this section is currently in § 97.14 (relating to measures to be used) and is proposed to be moved to Chapter 91. The title of the section is changed from ''measures to be used'' to ''pollution prevention'' to more clearly define the intent of the section. In addition, the text of this section is proposed to be modified slightly to include additional examples of pollution prevention methods. Existing § 91.5 (relating to interpretation of regulations) is renumbered as § 91.4.
§ 91.11 (relating to compliance conferences)
The title of this section is proposed to be changed from ''conferences with violators'' to ''compliance conferences'' to more clearly describe the intent of the conferences held to discuss pollution abatement options. The last sentence of this section was deleted since these conferences may not involve orders issued by the Department.
§ 91.12 (relating to conference procedure)
Subsection (a) contained provisions that prohibited Department employes from recommending specific measures or methods to be used by parties attempting to comply with Department requirements. This section is proposed for deletion because it restricted innovation and hindered the Department's ability to assist persons attempting to comply with Department requirements and was inconsistent with § 91.11. In addition, the term ''the staff'' would be replaced with ''employes of the Department'' throughout the section to more clearly define the individuals representing the Department.
§ 91.13 (relating to abatement or treatment required)
This section is proposed for revision to remove the requirement for submission of detailed plans and specifications for the construction of a treatment works as the only alternative to abatement of pollution. Language is added to allow the consideration of pollution prevention measures or other actions as alternatives to construction of facilities.
§ 91.15 (relating to basin-wide compliance)
The title of this section is proposed to be changed from ''basin-wide plans'' to ''basin-wide compliance'' to more accurately reflect the intent of achieving basin-wide compliance with water quality objectives. A requirement to submit plans and construct treatment plants concurrently for an entire stream basin is proposed for deletion because it is too prescriptive and impracticable. The term ''sources of pollution'' is proposed to be changed to ''pollutant sources'' for clarity and because the term ''pollutant'' is now defined in § 91.1 (relating to definitions). In addition, a conforming change has been made to § 91.14(a) (relating to time for constructing treatment works).
§ 91.21 (relating to applications for permits)
A minor change to this section is proposed to better define the Department's regional office as the appropriate place to submit permit applications rather than the ''regional engineer'' which is now an obsolete term. In addition, a subsection has been added which outlines the administrative process to obtain coverage under a proposed General Water Quality Management Permit (see § 91.27 (relating to general water quality management permits).
§ 91.22 (relating to fees)
A new subsection (b) is proposed to provide for fees to be established for the Department's review of notices of intent (NOI) submitted for coverage under a general permit. The provisions would authorize the Department to establish a fee for review of the NOI for each type of general permit through publication of the fees when the general permit is published in the Pennsylvania Bulletin as described in proposed § 91.27(b)(1). The existing language of this section would be retained in a new subsection (a).
§ 91.25 (relating to experimental projects)
The proposed amendments would allow field data on experimental projects that have been demonstrated in other states with climatic conditions similar to this Commonwealth to be used as a basis for approval of an innovative treatment process not currently in use in this Commonwealth. This section is intended to remove a current regulatory barrier to the use of innovative technology in this Commonwealth.
§ 91.27 (relating to general water quality management permits)
This new section would give the Department the authority to issue general water quality management permits. These permits would be issued once Statewide for specific classifications of treatment facilities which will treat the same type of wastewater, involve the same type of operations and require the same type of operating conditions. Applicants for coverage under one of these general permits would submit an NOI to the Department. The proposed amendments would provide that, based on the conditions in the general permit under which coverage is being requested, the applicant may be authorized to begin constructing the wastewater treatment facility after waiting for a specific period of time in the general permit, on the date specified in the general permit, upon notification of inclusion by the Department or upon receipt of the application for coverage by the Department. The amendments include the conditions under which the Department may deny coverage under a general permit as well as when existing coverage under a general permit may be revoked, suspended or terminated by the Department and an individual water quality management permit required. These provisions are proposed for inclusion in Chapter 91 to improve the level of compliance and provide a reduction in cost and paperwork for both the Department and regulated community for specific classes of treatment facilities while still protecting the environment through specific conditions in each general permit. The proposed procedures are similar to those used to establish and implement NPDES general permits authorizing wastewater discharges.
Standards for Approval
The undesignated center heading would be changed from ''Standards for Approval'' to ''Management of Other Wastes'' to more clearly describe the modified and new provisions under this heading.
§ 91.31 (currently relating to ''comprehensive water quality management'' and proposed to be changed to ''wells other than oil and gas'')
The current regulation establishes standards for approving projects relative to comprehensive water quality management plans and supports implementation of the policy statement in The Clean Streams Law (35 P. S. §§ 691.1--691.1001) related to establishing a comprehensive program of watershed management and control. This section is obsolete in that it does not reflect current watershed management concepts and practices. The entire section is proposed to be deleted and replaced by provisions currently in § 97.61 (relating to wells other than oil or gas) with a proposal to change the term ''polluting wastes'' to ''pollutant'' which is a defined term. In addition, the reference to ''1,000 p.p.m.'' in existing § 97.61(a) is changed to ''1,000 nephelometric turbidity units (NTU).'' In subsection (c) the word ''receptacle'' is inserted between the words ''or'' and ''shall'' to be consistent with the use of ''receptacle'' later in the same subsection.
§ 91.32 (currently relating to ''private projects'' and proposed to be changed to ''underground injection of wastes'')
The current provisions relating to private projects would be moved to a newly created § 91.37 (relating to private projects).
The Department's regulations relating to underground injection of wastes are currently found in §§ 97.71--97.76. These regulations are more stringent than Federal regulations in that an NPDES Permit is required, but the Federal regulations at 40 CFR 144 (relating to underground injection control program) only require these permits for surface water discharges. The proposed amendments delete §§ 97.71--97.76 and incorporate by reference the Federal regulations in § 91.32. The proposed new provisions provide that any underground injection of waste shall comply with 40 CFR 144 relating to underground injection control.
§ 91.33 (currently relating to ''permit requirements'' and proposed to be changed to ''incidents causing or threatening pollution'')
Existing § 91.33 is covered by Federal law and is not related to the new content of Chapter 91. The proposed rulemaking deletes this section from Chapter 91. The Department's regulations relating to incidents causing or threatening pollution are currently found in § 101.2. That section includes provisions related to actions to be taken in the event of an accident or incident causing the release of toxic or other harmful pollutants. It also includes an outdated listing of regional office emergency telephone numbers in § 101.2 (c) and (d). The proposed amendments delete this section, and the provisions of § 101.2 (a), (b) and (e) are moved to § 91.33. Minor changes are proposed to subsection (a) by deleting ''or taste and odor producing substances'' and changing the word ''another'' to ''any other'' in describing the substances covered under these emergency provisions and deleting the word ''municipality'' in both subsections (a) and (b) since the definition for the word ''person'' includes municipalities. The Water Subcommittee (Subcommittee) of the Committee recommended the Department change the term ''forthwith'' (in the original text being transferred) to ''as soon as practicable.'' This section relates to the need to notify the Department of an accident involving a discharge of a toxic substance or other pollutant into waters of this Commonwealth. The Department feels that, because of potential hazards to the environment and public health associated with any delay in notification and the potential for misinterpretation of the phrase ''as soon as practicable,'' the word ''immediately'' is more appropriate. The provisions which require the reporting of an incident ''immediately'' are also more stringent than Federal regulations at 40 CFR 122.41 which allow 24 hours for a report. This more stringent requirement has been retained in this proposed rulemaking because it has been proven over many years to prevent hazards to downstream drinking water supplies and other water users and has prevented property damage. The Department feels that the benefits of a quick response outweigh any additional burden placed on the individual to quickly report the incident.
The Subcommittee raised a concern regarding consistency of the phrase ''remove from the ground'' in § 91.33(b) with the Land Recycling and Environ- mental Remediation Standards Act (Act 2) (35 P. S. §§ 6026.101--6026.909). The Department has inserted the phrase ''this title'' between ''by'' and ''the'' in the last sentence of the subsection. This change will assure that activities related to removal of pollutants from the ground are conducted in accordance with appropriate Department regulations including regulations promulgated under Act 2.
§ 91.34 (relating to activities utilizing pollutants)
The Department's regulations relating to activities utilizing pollutants are currently found in § 101.3 (relating to activities utilizing polluting substances). That section regulates activities such as impoundments or transportation of polluting substances. The proposed amendments move § 101.3 to new § 91.34. The term ''polluting substances'' is proposed to be changed to ''pollutants'' in subsection (a) of the transferred text. In addition, the words ''municipalities'' and ''municipality'' were deleted because the definition for the word '' person'' includes these terms.
§ 91.35 (relating to wastewater impoundments)
The Department's regulations relating to wastewater impoundments are currently found in § 101.4 (relating to impoundments). That section regulates the proper operation, maintenance and use of impoundments used for the production, processing, storage, treatment or disposal of polluting substances. The proposed amendments move § 101.4 to new § 91.35. The title of the section would be changed from ''Impoundments'' to ''Wastewater impoundments'' to make it clear that these requirements do not relate to other impounded waters such as ponds, lakes and reservoirs. The word ''municipality'' has been deleted in subsection (a) and (b) because the definition of ''person'' includes this term.
§ 91.36 (relating to pollution control and prevention at agricultural operations)
The Department's regulations relating to pollution control and prevention at agricultural operations are currently found in § 101.8. The proposed amendments move the content of § 101.8 to new § 91.36. Minor changes to the existing text are proposed. The term ''polluting substances'' is proposed to be changed to ''pollutants'' in subsections (a) and (b) of the transferred text.
The Subcommittee raised a concern that existing § 101.8(b) (§ 91.36(b) of the proposal) be reviewed for potential conflicts with nutrient management regulations in Chapter 83 (relating to State Conservation Commission), published as final at 27 Pa.B. 3161 (June 28, 1997), effective October 1, 1997. To better identify the relationship between these proposed amendments and the nutrient management regulations, the following sentence has been added at the end of § 91.36(b): ''Operations which are required to or volunteer to submit nutrient management plans shall comply with Chapter 83.'' Similar language has been added at the end of subsection (a).
§ 91.37 (relating to private projects)
This section was previously § 91.32. The text of this section has not been modified.
§ 91.38 (relating to algicides, herbicides and fish control chemicals)
Section 101.5 of the current regulations describes an approval process to obtain permission to apply algicides, herbicides or fish control chemicals to sources of public drinking water supply to control algae. An additional provision describes a joint approval given by the Department and the Fish and Boat Commission to control aquatic plants in surface waters using chemicals. The proposed amendments would move § 101.5 to new § 91.38 and revise ''Fish Commission'' to ''Fish and Boat Commission.''
§ 101.1 (relating to definitions)
The definitions are proposed to be deleted.
§ 101.6 (relating to protection of Wallenpaupack Lake)
This section of the existing regulations describes special pollution prevention measures to be put in place specifically for Wallenpaupack Lake. These provisions are obsolete. The proposed amendments would delete this section in its entirety.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the proposed amendments. It also requires a statement of the need for, and a description of forms, reports or other paperwork required as a result of the proposal.
These proposed amendments to Chapter 91 and 97 and deletion of Chapter 101 are necessary to implement the Department's Regulatory Basics Initiative and the goals of Executive Order 1996-1. The regulatory amendments will result in the promotion of pollution prevention strategies, eliminate regulations which inhibit the application of green technologies and eliminate obsolete regulations or regulations which are more stringent than Federal rules without a compelling and articulable Pennsylvania public interest or required by State law.
Benefits
Individuals, consultants and sewage treatment plant permittees will benefit from the proposed amendments without reductions in protection of public health or the environment. The amendments will allow the Department staff more flexibility to recommend innovative remediation measures to attain compliance. In addition, the proposed provisions regarding pollution prevention will provide new options when considering sewage treatment/operational alternatives to achieve compliance. The amendments to the provisions regarding experimental facilities will allow the use of new innovative technologies to be considered for use in this Commonwealth. Additionally, the elimination of obsolete regulations and the proposal to incorporate appropriate sections of Chapter 101 into Chapter 91, while clarifying some regulatory language, will eliminate confusion among the regulated community as to which regulations are applicable. These changes should result in increased compliance and improve the environment. The cost savings associated with these changes is estimated to be $2,812,500.
Compliance Costs
The proposed amendments to Chapters 91 and 97 and deletion of Chapter 101 do not create new regulatory requirements; rather, they eliminate unnecessary existing requirements, combine related regulations from several different chapters of regulations into one chapter and clarify existing text. The proposed amendments which provide new alternatives for compliance will not impose additional costs on anyone.
Compliance Assistance Plan
The Department does not intend to develop a compliance assistance plan because there is no expected adverse impact on compliance.
Paperwork Requirements
There will be no additional forms, reports or other paperwork that will be required as the result of these proposed amendments.
G. Pollution Prevention
In keeping with Governor Ridge's interest in encouraging pollution prevention solutions to environmental problems, these proposed amendments have incorporated the following provisions and incentives to meet that goal:
Regulations currently in § 97.14 (relating to measures to be used) would be transferred to § 91.5. This section would be renamed ''pollution prevention'' to more clearly identify the intent.
Section 91.13 (relating to abatement or treatment required) would be rewritten to emphasize that pollution prevention is a key factor to be used when options to abate pollution are being considered by a permittee.
Section 91.34 (relating to activities utilizing pollutants) requires persons and municipalities engaged in an activity which includes pollutants to develop a report describing the nature of preventative measures taken to keep these pollutants from the waters of this Commonwealth.
H. Sunset Review
These amendments will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the amendments effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 12, 1997, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC), and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed amendments, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review by the Department, the Governor and the General Assembly before publication of the final-form regulations.
J. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendments to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail; Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by September 22, 1997. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by September 22, 1997. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final-form regulations will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@A1.dep.state.pa.us and must also be received by the Board by September 22, 1997. A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
JAMES M. SEIF,
ChairmanFiscal Note: 7-323. No fiscal impact; (8) recommends adoption.
Annex A TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION Subpart C. PROTECTION OF NATURAL RESOURCES ARTICLE II. WATER RESOURCES CHAPTER 91. GENERAL PROVISIONS GENERAL § 91.1. Definitions.
The definitions set forth in section 1 of the act of June 22, 1937 (P. L. 1987, No. 394) (35 P. S. § 691.1) [applies] apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Application--The Department's form for requesting approval to construct and operate a wastewater collection, conveyance or treatment facility under a new water quality management permit, or the modification, revision or transfer of an existing water quality management permit.
[Department--The Department of Environmental Resources of the Commonwealth or, where appropriate, the Sanitary Water Board, Environmental Quality Board or Environmental Hearing Board of the Commonwealth.
EPA--The United States Environmental Protection Agency.]
Facility--A structure built to collect, convey or treat wastewater which requires coverage under a Water Quality Management Permit.
Federal act--The Federal Water Pollution Control Act (33 U.S.C.A. §§ 1251--1387).
General water quality management permit or general permit--A Water Quality Management Permit that is issued for a clearly described category of wastewater treatment facilities, which are substantially similar in nature.
Industrial waste--A liquid, gaseous, radioactive, solid or other substance resulting from manufacturing or industry, or from any 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. The term includes all substances whether or not generally characterized as waste. The term does not include sewage.
National Pollutant Discharge Elimination System (NPDES) permit--A permit or equivalent document or requirements issued by the Administrator of the EPA or, when appropriate, by the Department to regulate the discharge of pollutants under section 402 of the Federal act (33 U.S.C.A. § 1342).
Notice of intent (NOI)--A complete form submitted as a request for general water quality management permit coverage.
Operator--A person or other legal entity responsible for the operation or maintenance of a facility or activity subject to this chapter.
Owner--The person or other legal entity holding legal title to a facility or activity subject to this chapter.
Person--An individual, public or private corporation, partnership, association, municipality, political subdivision of the 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 employe thereof, or any other legal entity.
Pollutant--A contaminant or other alteration of the physical, chemical or biological properties of surface water which causes or has the potential to cause pollution as defined in section 1 of The Clean Streams Law (35 P. S. § 691.1).
Schedule of compliance--A schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with effluent limitations, other limitations, prohibitions or standards.
Sewage--A substance that contains waste products or excrementitious or other discharge from the bodies of human beings or animals.
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 which collects, disposes and treats solely direct or indirect sewage discharges from the residences into waters of this Commonwealth.
Stormwater--Stormwater runoff, snow melt runoff, and surface runoff and drainage.
Wastewater impoundment--A depression, excavation or facility situated in or upon the ground, whether natural or artificial and whether lined or unlined.
Water quality management permit--A permit or equivalent document or requirements issued by the Department to authorize one of the following:
(i) The construction, erection and location of a wastewater collection, conveyance or treatment facility.
(ii) A discharge of wastewater to groundwaters of this Commonwealth. This permit is also known as a ''Part II'' permit.
Waters of this Commonwealth--Rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth. The term includes surface waters as defined in Chapter 93 (relating to water quality standards).
§ 91.6. Pollution prevention.
The pollutant loading of wastes should be reduced to the maximum extent practical by process changes, materials substitution, segregation of strong wastes, reduction in volume of water use, recycling and reuse of water, and by general measures of ''good housekeeping'' within the plant or facility. The term ''practical'' is not limited to that which is profitable or economical.
ADMINISTRATION AND ENFORCEMENT § 91.11. [Conferences] Compliance conferences [with violators].
(a) The Department will confer with the representatives of organizations required to abate their pollution of the waters of this Commonwealth and offer advice and suggestions regarding possible means for the abatement, [or] treatment or prevention of the pollution in question. [The staff shall interpret the orders of the Department.]
* * * * * § 91.12. Conference procedure.
[(a) The staff may not select or recommend specific measures or methods to be adopted by the party attempting to comply with the requirements of the Department.
(b)] (a) [The staff] Employes of the Department may not act as [a] consulting [engineer] engineers for a party or recommend the employment of a particular consultant, gather the data for the design of his treatment plant, prepare plans or act as an inspector on the construction of the project.
[(c)] (b) [The Department and the staff] Employes of the Department will not guarantee directly or by implication the efficacy of a proposed method of pollution abatement.
[(d)] (c) [The staff] Employes of the Department shall exercise their best judgment in assisting the party and his engineers, but the responsibility for abating pollution shall rest entirely upon the one causing the pollution.
§ 91.13. Abatement or treatment required.
The Department will require either abatement of the pollution or the submission of a [report with detailed construction plans and specifications for a proposed treatment works] plan and schedule for bringing the source's pollutants into compliance through pollution prevention measures, treatment or other means by a specific date, and shall require progress reports thereon, usually at monthly or bimonthly intervals as the Department will deem appropriate.
§ 91.14. Time for constructing treatment works.
(a) If, in lieu of abatement, a notified party elects to provide waste treatment works and submits plans therefor, the Department, upon approving the plans, will set a time within which the treatment works shall be constructed and placed in operation or will notify the party to be prepared to construct the plant upon notice from the Department, depending upon the status of the Department's program of construction for the basin in which the receiving stream lies as specified in § 91.15 (relating to basin-wide [plans] compliance).
* * * * * § 91.15. Basin-wide [plans] compliance.
(a) In general, the Department will require [submission of plans and construction of plants concurrently for a whole stream basin] sources of pollutants in a basin, wastershed or surface waters as defined in Chapter 93 (relating to water quality standards) to concurrently comply with the water quality standards and protection levels set forth in Chapter 93 and Chapters 16 and 95 (relating to water quality toxics management strategy; and treatment requirements).
(b) [If] Notwithstanding subsection (a), if certain sources of [pollution] pollutants especially affect the public interests, [however,] the Department may act to require the abatement of the sources of pollution individually in the general order of degree of adverse effect upon the public interest.
* * * * * APPLICATIONS AND PERMITS § 91.21. Applications for permits.
* * * * * (c) Applications and their accompanying papers shall be submitted to the [Department through the regional engineer in whose region] Department's regional office covering the area where the project will be located.
(d) To qualify for coverage under a general water quality management permit under this chapter, an administratively complete notice of intent (NOI) shall be submitted to and approved by the Department in accordance with § 91.27 (relating to general water quality management permit).
§ 91.22. Fees.
(a) * * *
(b) A notice of intent (NOI) for coverage under a general water quality management permit shall be accompanied by a check payable to the ''Commonwealth of Pennsylvania,'' in the amount no greater than $500 as set forth in the public notice for the general water quality management permit as described in § 91.27(b)(1) (relating to general water quality management permit).
§ 91.25. Experimental projects.
If the suitability of a proposed device or method of treatment has not been demonstrated by actual field use in this Commonwealth or another state with similar climatic conditions, only conditional approval will be given to it until such time as the effectiveness of the device or treatment has been demonstrated to the satisfaction of the Department by ample field experience.
§ 91.27. General water quality management permit.
(a) Coverage and purpose. The Department may issue a general water quality management permit, in lieu of issuing individual water quality management permits, for a specific category of wastewater treatment facilities if the wastewater treatment facilities meet the following:
(1) Involve the same, or substantially similar, type of operations.
(2) Treat the same types of wastes.
(3) Require the same operating conditions.
(4) Are, in the judgment of the Department, more appropriately managed under a general permit than under individual permits.
(b) Administration of general permits
(1) Proposed general permits and amendments. The Department will publish a notice in the Pennsylvania Bulletin of its intent to issue or amend a general permit, including the text of the proposed general permit or amendment, proposed review fees and an opportunity for interested persons to provide written comments on the proposed general permit or amendment in accordance with § 91.16 (relating to notification of actions).
(2) Issuance of general permits. General permits, subsequently issued, will be published in the Pennsylvania Bulletin and include the effective date of the general permit and review fees.
(3) Effective date of a general permit. The Department will specify in the general permit that an applicant who has submitted a timely and complete notice of intent for coverage is authorized to construct, erect and locate a wastewater treatment facility or discharge to groundwaters of this Commonwealth, in accordance with the terms and conditions of the general permit coverage. The general permit shall commence according to one of the following:
(i) After a waiting period specified in the general permit.
(ii) On a date specified in the general permit.
(iii) Upon receipt of notification of coverage by the Department.
(iv) Upon receipt of the notice of intent by the Department.
(4) Coverage under a general permit. A person who desires to have a wastewater treatment facility covered under a general permit shall submit a notice of intent to the Department in accordance with §§ 91.21 and 91.22 (relating to applications for permits; and fees) and the written instructions of the notice of intent. The Department will review the information provided in the notice of intent to determine if the wastewater treatment facility qualifies under the provisions of the general permit except as provided in subsection (c)(1), (2) or (4).
(c) Denial of coverage. The Department may deny coverage under the general permit when one or more of the following conditions exist:
(1) The NOI is not complete or timely.
(2) The applicant has not first obtained NPDES permits required by Chapter 92 (relating to national pollutant discharge elimination system).
(3) The applicant is not, or will not be, in compliance with one or more of the conditions of the general permit or has a significant history of noncompliance with a prior permit issued by the Department.
(4) The treatment facility proposed for coverage under the general permit is not capable of treating wastewater to a degree which will result in compliance with applicable effluent limitations and water quality standards as described in Chapter 93 (relating to water quality standards).
(5) The Department determines that the action is necessary to ensure compliance with the Federal act, the act or this title.
(d) Requiring an individual permit. The Department may revoke, or suspend coverage under a general water quality management permit, and require that an individual water quality management permit be obtained when the permittee has violated one or more of the conditions of the general permit or has violated a provision of this title. Upon notification by the Department that an individual water quality management permit is required for the facility, the owner shall submit a complete water quality management permit application, in conformance with the requirements of this chapter, within 90 days of receipt of the notification, unless the owner is already in possession of a valid individual water quality management permit for the applicable functions. Failure to submit the application within 90 days shall result in automatic termination of coverage under the general permit. Timely submission of a complete application shall result in continuation of coverage of the applicable facilities under the general permit, when the facility demonstrates that it has undertaken efforts to address the reasons for the revocation or suspension of coverage, until the Department takes final action on the pending individual permit application.
(e) Termination of general permit. When an individual water quality management permit is issued for a facility which is covered under a general water quality management permit, the applicability of the general permit to that facility is automatically terminated on the effective date of the individual permit.
[STANDARDS FOR APPROVAL] MANAGEMENT OF OTHER WASTES § 91.31. [Comprehensive water quality management.] Wells other than oil and gas.
[(a) The Department will not approve a project requiring the approval under the act or the provisions of this article unless the project is included in and conforms with a comprehensive program of water quality management and pollution control provided, however, that the Department may approve a project which is not included in a comprehensive program of water quality management and pollution control if the Department finds that the project is necessary and appropriate to abate existing pollution or health hazards and that the project will not preclude the development or implementation of the comprehensive program.
(b) The determination of whether a project is included in and conforms to a comprehensive program of water quality management and pollution control shall be based on the following standards:
(1) Appropriate comprehensive water quality management plans approved by the Department.
(2) Official Plans for Sewage Systems which are required by Chapter 71 (relating to administration of sewage facilities planning program).
(3) In cases where a comprehensive program of water quality management and pollution control is inadequate or nonexistent and a project is necessary to abate existing pollution or health hazards, the best mix of all the following:
(i) Expeditious action to abate pollution and health hazards.
(ii) Consistency with long-range development.
(iii) Economy should be considered in the evaluation of alternatives and in justifying proposals.
(c) In making determinations under the provisions of subsection (b)(3), the Department will consider available and relevant information including, but not limited to, applicable studies and plans prepared by the following:
(1) The applicant.
(2) The Department.
(3) Federal agencies.
(4) Approved planning agencies.
(5) Political subdivisions.]
(a) Each well-drilling operation shall have a sump or other receptacle large enough to receive all drill cuttings, sand bailings, water having a turbidity in excess of 1,000 nephelometric turbidity units (NTU) or other pollutant resulting from the well drilling operations.
(b) Surface water shall be excluded from the sump or receptacle by means of diversion ditches on the uphill sides, or by other appropriate measures.
(c) After completion of the well, the sump or receptacle shall be covered over or otherwise protected or the contents of the receptacle disposed of, so that the contents will not be washed into the waters of this Commonwealth.
(d) Waste oil, coal, spent materials or other pollutants shall be disposed of so that they will not be washed into the waters of this Commonwealth.
§ 91.32. [Private projects] Underground injection of wastes.
[(a) The Department will look with disfavor upon applications for sewerage permits for private sewerage projects to be located within the built-up parts of cities, boroughs and first and second class townships.
(b) Generally, issuance of the sewerage permits will be limited to proper private sewerage projects located in the rural parts of first and second class townships, and for which areas there appears to be no present necessity for public sewerage.]
Underground injection of waste shall comply with 40 CFR Part 144 (relating to underground injection control program).]
§ 91.33. [Permit requirements] Incidents causing or threatening pollution.
[A permit may not be required for the discharge of sewage or industrial wastes into a sewer, sewer system or treatment plant which has been approved by a permit from the Department, provided that the sewer, sewer system or treatment plant is capable of conveying and treating the discharge and is operated and maintained in accordance with the permit and applicable orders, rules and regulations.]
(a) If, because of an accident or other activity or incident, a toxic substance or another substance which would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property, is discharged into these waters--including sewers, drains, ditches or other channels of conveyance into the waters--or is placed so that it might discharge, flow, be washed or fall into them, it shall be the responsibility of the person at the time in charge of the substance or owning or in possession of the premises, facility, vehicle or vessel from or on which the substance is discharged or placed to immediately notify the Department by telephone of the location and nature of the danger and, if reasonably possible to do so, to notify known downstream users of the waters.
(b) In addition to the notices set forth in subsection (a), a person shall immediately take or cause to be taken steps necessary to prevent injury to property and downstream users of the waters from pollution or a danger of pollution and, in addition thereto, within 15 days from the incident, shall remove from the ground and from the affected waters of this Commonwealth to the extent required by this title the residual substances contained thereon or therein.
(c) Compliance with this section does not affect the civil or criminal liability to which the person or municipality may be subject as a result of an activity or incident under the act, 30 Pa.C.S. §§ 101--7314 (relating to the Fish and Boat Code) or another statute, ordinance or regulation.
§ 91.34. Activities utilizing pollutants.
(a) Persons engaged in an activity which includes the impoundment, production, processing, transportation, storage, use, application or disposal of pollutants shall take necessary measures to prevent the substances from directly or indirectly reaching waters of this Commonwealth, through accident, carelessness, maliciousness, hazards of weather or from another cause.
(b) Upon notice from the Department and within the time specified in the notice, the person shall submit to the Department a report or plan setting forth the nature of the activity, the nature of the preventative measures taken to comply with subsection (a) and other information the Department may require.
§ 91.35. Wastewater impoundments
(a) Except as otherwise provided under subsections (c) and (d), a person may not operate, maintain or use or permit the operation, maintenance or use of a wastewater impoundment for the production, processing, storage, treatment or disposal of pollutants unless the wastewater impoundment is structurally sound, impermeable, protected from unauthorized acts of third parties, and is maintained so that a freeboard of at least 2 feet remains at all times. The person owning, operating or possessing a wastewater impoundment shall have the burden of satisfying the Department that the wastewater impoundment complies with these requirements.
(b) A person owning, operating or in possession of an existing wastewater impoundment containing pollutants, or intending to construct or use a wastewater impoundment, shall promptly submit to the Department a report or plan setting forth the location, size, construction and contents of the wastewater impoundment and other information as the Department may require.
(c) Except when a wastewater impoundment is already approved under an existing permit from the Department, a permit from the Department is required approving the location, construction, use, operation and maintenance of a wastewater impoundment subject to subsection (a) in the following cases:
(1) If a variance is requested from the requirements in subsection (a).
(2) If the capacity of one wastewater impoundment or of two or more interconnected wastewater impoundments exceeds 250,000 gallons.
(3) If the total capacity of polluting substances contained in wastewater impoundments on one tract or related tracts of land exceeds 500,000 gallons.
(4) If the Department determines that a permit is necessary for effective regulation to insure that pollution will not result from the use, operation or maintenance of the wastewater impoundment.
(d) This section does not apply to residual waste processing, disposal, treatment, collection, storage or transportation.
§ 91.36. Pollution control and prevention at agricultural operations.
(a) Animal manure storage facilities. Animal manure storage facilities do not require a permit from the Department if the design and operation of the storage facilities are in accordance with the Department approved manure management practices as described in the publication entitled ''manure management for environmental protection'' and addenda or amendments thereto prepared by the Department. If a person chooses to design or construct manure storage facilities using criteria other than those described in ''manure management for environmental protection'' and addenda or amendments thereto prepared by the Department, approval of the Department or a permit under § 91.35 (relating to wastewater impoundments) will be required. Operations which are required to or volunteer to submit nutrient management plans shall comply with the nutrient management regulations in Chapter 83 (relating to State Conservation Commission).
(b) Land application of animal manure. The land application of animal manures do not require a permit from the Department if the design and operation of the land application system are in accordance with the Department approved manure management practices as described in the publication entitled ''Manure Management for Environmental Protection'' and addenda or amendments thereto prepared by the Department. If a person chooses to design or construct a land application system using criteria other than those described in ''Manure Management for Environmental Protection'' and addenda or amendments thereto prepared by the Department, approval of the Department or a permit will be required. Operations which are required to or volunteer to submit nutrient management plans shall comply with Chapter 83.
§ 91.37. Private projects.
(a) The Department will look with disfavor upon applications for sewerage permits for private sewerage projects to be located within the built-up parts of cities, boroughs and first and second-class townships.
(b) Generally, issuance of the sewerage permits will be limited to proper private sewerage projects located in the rural parts of first and second class townships, and for which areas there appears to be no present necessity for public sewerage.
§ 91.38. Algicides, herbicides and fish control chemicals.
Except where the use of an algicide, herbicide or fish control chemical would be in violation of a specific order or permit, the use is authorized only in the following instances:
(1) Copper sulfate required to control algae in a source of public water supply where the use is under and in accordance with approval given by the Department.
(2) Chemicals required to control aquatic plants in surface waters and chemicals required for the management of fish populations where the use is under and in accordance with joint approval given by the Department and the Fish and Boat Commission.
CHAPTER 97. INDUSTRIAL WASTES (Editor's Note: The Department is proposing to delete §§ 97.14, 97.61 and 97.71--97.76 as they currently appear in the Pennsylvania Code at pages 97-5, 97-10, 97-11 and 97-14--97.16 (serial pps. (139009), (139014), (139015) and (126050)--(126052)).)
§ 97.14. (Reserved)
§ 97.61. (Reserved)
§§ 97.71--97.76. (Reserved)
(Editor's Note: The Department is proposing to delete Chapter 101 as it currently appears in the Pennsylvania Code at pages 101-1--101-7 (serial pps. (194071)--(194074) and (170117)--(170119)).)
CHAPTER 101. (Reserved)
§§ 101.1--101.6. (Reserved)
§ 101.8. (Reserved)
[Pa.B. Doc. No. 97-1351. Filed for public inspection August 22, 1997, 9:00 a.m.]
