Pennsylvania Proposes Overhaul of NPDES Permitting Regulations

March 4, 2010
by BRENDA HUSTIS GOTANDA
MGKF Special Alert

On February 13, 2010, the Pennsylvania Environmental Quality Board ("EQB") published for public comment a proposed rulemaking to completely overhaul the existing regulations governing the National Pollutant Discharge Elimination System ("NPDES") permitting program in Pennsylvania. The proposal scraps entirely the current regulations at 25 Pa. Code Chapter 92 and replaces them with a new Chapter 92a, with the stated intent of more closely aligning them with the federal program regulations. However, in addition to reorganizing the regulations, the proposal includes several new provisions, including a fee structure that would substantially increase NPDES permitting fees collected by the Pennsylvania Department of Environmental Protection ("PADEP"). Comments may be submitted on the proposed regulation until March 15, 2010.

The proposed new fee structure is designed to increase the funds collected from permittees in order to cover the full cost to the Commonwealth of running the program. The proposal states that the Commonwealth currently collects approximately $750,000 in fees and the new system would increase that amount to approximately $5 million. Pennsylvania proposes to replace the existing $500 permit application fee, paid every 5 years, with a framework of generally higher initial application fees as well as new annual fees. The annual fees will vary with the type of discharge (sewage, industrial waste, etc.) and the design flow of the facility. For example, the annual fee for a major industrial facility with a design flow of less than 250 million gallons per day ("MGD") would be $5,000 and would jump to $25,000 for larger design flows. Application fees for those types of facilities would be $10,000 and $50,000, respectively. Stormwater permits would carry a $2,000 application fee and a $1,000 annual fee.

In addition to reorganizing the regulation and incorporating federal requirements by reference, the proposal includes several new provisions. These include, among others, provisions addressing cooling water intake structures and federal Clean Water Act Section 316(b) compliance, notification of new or increased discharges, stormwater discharges, new permits-by-rule for pesticide application and for single-residence sewage treatment plants, new treatment requirements for sewage (including a tertiary treatment standard for certain discharges) and for industrial wastewaters (CBOD5 and TSS), consideration of local planning and zoning ordinances in permit application review, concentrated aquatic animal production, reissuance of expiring permits, and more.

MGKF will be preparing comments on the proposed rulemaking on behalf of several clients. If you have questions regarding the proposal or would like to submit comment to the EQB, either individually or as part of a group, please contact Brenda Gotanda (bgotanda@mgkflaw.com) or Marc Gold (mgold@mgkflaw.com) at 484-430-5700.