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February 24, 2020
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On December 7, 2019, the Pennsylvania Department of Environmental Protection (PADEP) reissued the general permit for stormwater associated with construction activities (PAG-02).  This general permit is routinely utilized in most real estate developments, solar farm installations, construction projects and other earth disturbance projects in the Commonwealth.  With the permit package, PADEP made substantial changes to the terms and conditions of the permit as well as the eligibility requirements to qualify for coverage under the general permit.  Importantly, the new permit automatically replaces any existing PAG-02 permit, however PADEP is requiring that permittees covered under a PAG-02 issued prior to December 7, 2019 certify whether they “remain eligible for and are able to comply with the terms and conditions of the reissued PAG-02 General Permit” in order to maintain coverage.  The acknowledgment is to be made electronically on or before March 9, 2020, and the form can be found here.

Permittees who are unable to certify that they remain eligible and able to comply with the new PAG-02 must nevertheless certify to that effect and submit an application for an individual NPDES permit on or before March 9, in which case general permit coverage under the new PAG-02 will continue until the individual permit is issued.  Failure to provide timely acknowledgement will result in termination of the permit coverage as of March 9, 2020.  Therefore it is critical that the acknowledgment be completed for all outstanding permits, or earthmoving activities will have to cease until a new permit is obtained.

The acknowledgment has raised many questions regarding who must make the certification (in cases of multiple co-permittees) and just what is being certified.  The Comment and Response Document (CRD) accompanying the permit package, along with the form itself, answer the first question:

• Only the primary permittee (listed on page 1 of the previously issued permit coverage) must complete the certification; co-permittees are not required to make the certification.
• For permittees with multiple sites covered under the previously issued PAG-02, a separate acknowledgment is required for each site/permit.

But not all questions regarding what it means to certify “eligibility” and to be “able to comply” with the terms and conditions of the new permit are answered in the acknowledgment form and CRD.  As discussed below, the new PAG-02 eligibility requirements are more restrictive than with the prior permit.  Is PADEP requiring current permittees to certify that they meet the new eligibility and design requirements in order to maintain coverage under the new general permit?  Our current understanding, from PADEP, regarding some of these issues includes:

• The certification of “eligibility” does not require meeting the new design criteria that are part of  the new Notice of Intent (NOI) for coverage, but does appear to require designs to meet the new anti-degradation best available combination of technologies (ABACT)/nondischarge alternatives (discussed below)
• The certification regarding ability and intent to comply relates to the new terms and conditions expressly set forth in the permit, which include:
• Training of personnel responsible for various aspects of permit compliance
• Making all co-permittees and personnel aware of the permit requirements
• Recordkeeping requirements for required monitoring and inspections as well as training logs
• Inspection of E&S BMPs within 24 hours after any precipitation event of 0.25″ or more (this now defines the “storm” after which inspection is mandated)
• Documenting inspections, both weekly and post-storm events, using PADEP’s forms or keeping equivalent information

Some questions remain unanswered and may require legal interpretation or consultation with PADEP personnel.  For instance, under the new permit package, contaminated sites are no longer eligible for coverage under the general permit (and must obtain an individual permit), and permittees are required to perform due diligence to ascertain whether a property is contaminated.  According to the Notice of Intent (NOI) instructions, properties with contamination that exceeds the “clean fill” concentrations set forth in the PADEP Management of Fill Policy (also recently revised, with “clean fill” designations tied primarily to residential standards) are ineligible for coverage under the general permit and must seek an individual permit.  Does that mean that due diligence is required now for existing facilities to certify that a project remains “eligible?”  Does that mean that existing earthmoving projects on properties with known contamination must all seek individual permits by March 9?

Confusing matters is the fact that PADEP has declared the terms and conditions of the new PAG-02 immediately applicable (at least until March 9) for all existing projects, but have indicated that it will review all NOIs filed before December 7, 2019 under the “old” design criteria and eligibility standards with the exception that projects in certain impaired watershed must meet the ABACT and non-discharge alternatives for E&S and PCSM (updated PADEP Q&A, #9).  What then are existing general permit holders being required to certify as to “eligibility?”

Other key aspects of the new PAG-02

• Outside of the certification/acknowledgment matters, the new PAG-02 contains significant changes from the prior iteration, which include:
• All permits will expire on December 7, 2024, irrespective of when issued (whereas the prior authorization was good for 5 years)
• All projects must demonstrate management of net changes in volume, rate, and water quality for certain designated storms (the water quality demonstration being new, and the requirements of which are part of a module within the NOI package)
• To be eligible for the general permit, any project discharging to certain impaired waters must meet ABACT or demonstrate a nondischarge alternative (for the designed storm event)
  • For erosion and sedimentation (E&S) controls, this means using enhanced BMPs previously only required for special protection waters as part of an individual NPDES permit (examples include using filter socks rather than silt fence, street vacuums rather than street sweeping, etc.)
  • For post-construction stormwater management (PCSM), this means using enhanced BMPs (with no real existing list of qualifying PCSM BMPs) or demonstrating a nondischarge alternative for the designed storm event (meaning no discharges during the 2 year/24-hour storm)

• Any surface water “tributary to the Chesapeake Bay” are subject to ABACT and nondischarge alternative requirements because the Bay is an impaired water (CRD, #9)
• Sites with contamination that exceeds the Pennsylvania Management of Fill Policy “clean fill” numerical standards (essentially residential standards) will not qualify for the general permit and must seek an individual permit.  Permittees must perform due diligence prior to applying to determine whether the site has been “impacted by a release.”
• Requests to transfer coverage from a primary permittee to another party must include certification and proof that the instrument recording PCSM requirements has been recorded

All in all, the new PAG-02 package contains significant changes and new requirements both for eligibility and compliance of which all permittees and co-permittees will need to be aware.  Careful review of the NOI application and instructions will be necessary during design phases.  It also creates significant hurdles for projects that are phased or for which land use approval may have been obtained prior to obtaining the NPDES permit.  As with many PADEP initiatives, the details will be developed and addressed during the permitting process and uniformity of approach between the PADEP regions will be critical.

The McNees Environmental & Toxic Tort Group can assist you and your consultants as you move through this newly refined process.  Please contact Scott Gould (sgould@mcneeslaw.com; 717-237-5304), Steve Matzura (smatzura@mcneeslaw.com; 717-237-5276), or Errin McCaulley (emccaulley@mcneeslaw.com; 717-237-5366) with any questions.

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