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Pennsylvania DEP unveils final revisions to its Chapter 102 E&S regulations

On May 4, 2010, the Pennsylvania Department of Environmental Protection unveiled its long-awaited revisions to the Chapter 102 Erosion and Sediment Control regulations. Along with the revisions, the Department released a 472-page comment-and-response document addressing the 1,300+ public comments that were submitted in response to the proposed regulations published in August 2009. We issued a Client Alert in February 2010 (http://www.saul.com/common/publications/pdf_2315.pdf) highlighting a few of the major revisions that the Department was proposing to make. The Department has now finalized those revisions, which include significant changes to the proposed regulations. As described below, they would likely not go into effect until September 2010, at the earliest.

BACKGROUND
The Department’s Chapter 102 regulations establish erosion and sediment (E&S) control standards for virtually all industrial and commercial enterprises that "move dirt," ranging from builders and real estate developers to those involved with the construction and operation of oil and gas activities, such as pipelines and Marcellus shale gas operators. The recently unveiled revisions add more detailed standards for E&S controls, broaden the threshold requirement for both E&S Control Permits and NPDES Permits for Stormwater Discharges Associated with Construction Activities, and establish significant post construction stormwater management (PCSM) requirements.

Although the Environmental Quality Board, among others, must still approve of the revisions (see Moving Forward, below), there will likely not be many additional substantive changes.

WHAT ARE SOME OF THE MAJOR PROVISIONS?
Riparian Buffers

• The revisions significantly alter the riparian buffer requirements. As revised, the buffer requirements are expanded and would apply to all permitted earth disturbance activities within 150 feet of certain waterways in both Exceptional Value and High Quality watersheds.
  • Under the revisions, if the watershed is maintaining its designated use, no earth disturbance activities would be allowed within 150 feet of the waterway. In such waterways, it would be required only that the project developer (and successor landowners) maintain the existing buffer as is. However, if the watershed is not maintaining its designated use, one of three things would be required: (1) protect an existing riparian forest buffer; (2) convert the existing riparian buffer into a riparian forest buffer; or (3) establish a new riparian forest buffer. The revisions would require that these buffers be protected in perpetuity through deed restrictions or other mechanisms, and that their boundary limits be clearly marked.
• The revisions include exception and waiver provisions for certain activities.
  • Exceptions include, among other things, certain single family homes, the repair and maintenance of existing pipelines and utilities, as well as certain oil and gas activities.
  • Activities that may apply for a waiver include, among other things, linear activities such as new roads, pipelines and utilities, as well as certain redevelopment and brownfields projects.
• The revisions contain a presumption that compliance with certain riparian forest buffer requirements equals compliance with the antidegradation requirements established in the Department’s Chapter 93 regulations.
• The revisions also establish a framework for a trading / offsetting credits program for riparian forest buffers that go above the baseline requirements.

E&S Plans, Permits, and Requirements

• The revisions set forth what is required in an E&S Plan, including a maintenance program providing for weekly inspections and inspections after each stormwater event, along with a written report documenting each inspection.
• The revisions set forth what is required to satisfy the antidegradation requirements established in the Department’s Chapter 93 regulations. The regulations suggest that compliance with Chapter 102 provisions will constitute compliance with the antidegradation requirements.
• The revisions expand the requirement to obtain an E&S Control Permit to all earth disturbance activities greater than or equal to five acres, including oil and gas activities. Under the Department’s current regulations, an E&S Control Permit is only required for certain timber harvesting and road maintenance activities.
• The revisions set up a framework for the Department to issue a general permit for activities not subject to NPDES requirements.

NPDES Permits

• The revisions broaden the threshold requirement for an NPDES permit. Under DEP’s current regulations, an NPDES permit is required for earth disturbance activities that are equal to or greater than five acres. Under the revisions, an NPDES permit will be required for earth disturbance activities equal to or greater than one acre. The revisions also establish that certain NPDES permit applications in special protection watersheds will have to satisfy the antidegradation requirements, regardless of whether the proposed discharge is new, additional, or increased.

Permit Application Fees

• The revisions alter the permit application fees that were originally proposed. Under the revisions, the Department would calculate fees on a two-tiered basis, with base fees for general permits set at $500, and base fees for individual permits set at $1,500. On top of the base fee, the Department would assess a "disturbed area" fee at the rate of $100 per acre of disturbed area. This is a significant revision from the August 2009 proposal that would have set a flat fee for both general and individual permits at $2,500 and $5,000, respectively.

Post Construction Stormwater Management (PCSM) Requirements

• The revisions would require that any earth disturbance activity that requires a permit must develop, implement, and maintain a PCSM plan.
• The revisions contain a grandfather provision so that existing permits, and any permit renewals between when the regulations go into effect and January 2013, would be governed by their existing permit terms.
• The revisions would require a licensed professional to be on-site and responsible for the implementation of critical stages of the PCSM plan. Importantly, the revisions would also require a permittee to record any PCSM BMP on an instrument with the county recorder of deeds. The instrument would have to state that the responsibility for maintenance of the BMP is a covenant that runs with the land.
• The revisions offer some flexibility regarding PCSM requirements for certain regulated activities, including utilities, pipelines, and oil and gas activities.

General Requirements

• The revisions would incorporate the new federal stormwater construction Effluent Limit Guidelines (ELGs) that went into effect in February 2010. These ELGs apply to monitoring turbidity levels in all storms that are less than the 2-year / 24-hour storm event. The revisions also address the process in the event of a conflict among federal and Pennsylvania regulatory provisions. DEP stated that it intends to develop guidance on how to measure compliance with these ELGs.
• The revisions establish an informal, expedited hearing process for persons aggrieved by actions of a conversation district that has been delegated authority from the Department to enforce Chapter 102. It is not clear, however, how that process would impact the 30-day appeal period set forth in the Environmental Hearing Board Act.

MOVING FORWARD
The revisions must still be reviewed and approved by the EQB, as well as the Independent Regulatory Review Commission (IRRC) and the Attorney General’s Office. The EQB is scheduled to consider the final revisions on May 17, 2010. If the EQB approves of the revisions, IRRC would then have at least 30 days to either approve or disapprove of them. The Attorney General’s Office would also have 30 days. If approved, the regulations would go into effect 90 days after their publication in the Pennsylvania Bulletin. If the EQB, IRRC, and the Attorney General’s Office approve of the regulations in short order, and if the legislature does not exercise its regulatory oversight authority, the regulations could go into effect as early as September 2010.

A copy of the revised regulations is available here.

A copy of the Department’s comment-and-response document is available here.