Final Rulemaking Chapter
102
Erosion and Sediment
Control and Stormwater
Management
Summary of Revisions
Why New/Revised Rulemaking?
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Amendments to the existing regulations.
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Incorporates the federal Clean Water Act “Phase II” National
Pollutant Discharge Elimination System (NPDES) permit
requirements for stormwater discharges associated with
construction activities;
Codifies post construction stormwater management (PCSM)
requirements, including long-term operation and maintenance
requirements of PCSM BMPs;
Includes specific antidegradation implementation provisions;
Updates agricultural planning and implementation
requirements;
Updates erosion and sediment (E&S) control requirements;
and
Establishes riparian buffer and riparian forest buffer
provisions.
Rulemaking Process
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Stakeholders, public and advisory committee participation
played a substantial role in shaping the final form of this
rulemaking.
Draft rule published in Pa Bulletin on August 29, 2009.
90-day public comment period-over 1,300 commentators.
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3 public hearings held
Citizens (86%), environmental groups, non-governmental
groups & academia (3%), industry (8%), government (federal,
state agencies municipalities and conservation districts) (3%),
state legislators (31 legislators from the House & Senate) and
the Independent Regulatory Review Commission (IRRC).
Published in Pa Bulletin as final on August 21, 2010
Effective date: 90 days or November 19, 2010
Addressing EHB Decisions
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DEP and regulated community unsuccessfully defending decisions
Focus on implement “antidegradation” requirements, which in
Pennsylvania are found in 25 Pa. Code Chapter 93.
Environmental Hearing Board (EHB) decisions:
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Zlomsowitch v. DEP, 2004 EHB 756;
Blue Mountain Preservation Association v. DEP and Alpine Rose Resorts, 2006 EHB
589; and
Crum Creek Neighbors v. DEP and Pulte Homes of PA, LP, EHB Docket No. 2007287-L, October 22, 2009
EHB overturned the DEP’s current implementation of
antidegradation requirements in the NPDES permits issued under
this chapter.
The cases identified that Chapter 102 did not provide an adequate
regulatory framework for the compliance with Chapter 93.
Key Definitions -102.1
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ABACT- Antidegradation Best Available Control Technologies
Animal Heavy Use Area
Intermittent Stream
Long-term Operation and Maintenance
Non-discharge Alternative
Oil and Gas Activities
Perennial Stream
Post Construction Stormwater
Road Maintenance Activities
Riparian Buffer and Riparian Forest Buffer
Stormwater
Agricultural E&S Requirements102.4 (a)
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A plan or BMPs must be installed for agricultural
plowing and tilling and animal heavy use areas
For areas under 5000 ft2, BMPs must be installed
to minimize erosion and sedimentation
For areas 5000 ft2 or greater, a written E&S plan is
required
Non-Agricultural E&S
Requirements-102.4(b)
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For areas under 5000 ft2, BMPs must be installed
to minimize erosion and sedimentation
For areas 5000 ft2 or greater, a written E&S plan
is required
Written E&S plan also required when:
Potential to discharge to special protection waters
 Required by other Department regulation (e.g.
Chapter 105)
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Activities Requiring a Permit-102.5
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Any construction related earth disturbance (with a few
exceptions) must have an NPDES if they disturb 1 acre
or greater.
Timber harvesting and road maintenance activities 25
acres or greater must have an E&S permit.
Oil and gas activities 5 acres or greater must have an
E&S permit.
All permits (NPDES and E&S) must contain PCSM
plans unless provided for in other ways (discussed later)
When permits are not required-102.5
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Person proposing earth disturbance under another
Pa. Code chapter permit (other than 92 or 102) –
no additional NPDES permit under 102
Person proposing discharging dredged or fill
material which is required to obtain a 404 permit –
no additional NPDES permit under 102
Person proposing agricultural plowing or tilling or
animal heavy use areas – no additional NPDES or
E&S permit under 102 (note: does not include
CAFOs or typical construction activities on a farm)
Antidegradation
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Part of water quality standards that ensures that waters
maintain their quality and uses
Applicants have to examine no discharge alternatives
If no discharge alternative is not feasible, then they
must use ABACT
ABACT must be environmentally sound and cost
effective treatment, land disposal, pollution prevention
and stormwater reuse BMPs that individually or
collectively manage the change in rate, volume and
water quality from storm events up to and including the
2-year/24-hour storm when comparing pre to post
BMP definition; BMPs in DEP Manuals
Preparedness, Prevention, and
Contingency (PPC) Plans-102.5
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Activities requiring a
permit
Must have a PPC plan
when storing, using or
transporting materials
Must be made available
on request of DEP or
CD
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Fuels
Chemicals
Solvents
Pesticides
Fertilizers
Lime
Petrochemicals
Wastewater
Wash water
Core drilling wastewater
Cement
Sanitary wastes
Solid wastes
Hazardous materials
General Permits Other Than
NPDES-102.5
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DEP may develop and issue general permits regionally
or statewide for category of activities not subject to
NPDES requirements but regulated under this chapter
if:
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Projects are similar in nature
Projects can be regulated using standard specs and
conditions, including those adopted by another Federal or
State agency
Projects will comply with Chapter 102
Projects individually and collectively do not have potential to
cause adverse environmental impact
NPDES permit authority pursuant to Chapter 92.
Preconstruction Meeting-102.5
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Permittee will invite DEP and CD to meeting
and give at least 7 days notice of the meeting
Meeting is required unless the DEP or CD
inform the permittee in writing otherwise
Attendants must include permittees, copermittees, operators, and licensed professionals
(or designees)
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Licensed professionals should be the person doing
the critical stages of BMP installation
Permit NOIs/Applications-102.6
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If NOI/application is incomplete or insufficient
Notification provided in writing
 Applicant has 60 days to provide information
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If no response in 60 days, application considered
withdrawn and are notified in writing
Applicant can ask for extension
Fees will not be returned for withdrawn
application
Permit Fees-102.6
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E&S and NPDES permits required under Chapter 102
General Permits
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Individual Permits
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$1500 + $100/acre disturbance fee
Fractional acreage - the acreage is rounded to the closest
whole number
Adequacy of the fees will be reviewed
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$500 + $100/acre disturbance fee
At least once every 3 years; and
A written report provided to the EQB
Conservation districts may charge additional fees.
Notice of Termination (NOT)-102.7
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NOT must contain information on the person who
agreed to and will be responsible for the PCSM
long-term O&M
Permittee (and co-permittee, when applicable) will
remain responsible for the site and any violations
on the site until written confirmation is provided
DEP or CD will conduct a final inspection and act
on the NOT in 30 days
Post Construction Stormwater
Management (PCSM)
Requirements-102.8
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Grandfathering provision of the PCSM responsibilities
under current permit terms and conditions including
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Long-term O&M deeding restrictions, etc.
Mandatory use of riparian buffers as a PCSM BMP
PCSM Plan development, implementation and
maintenance – parallel construction to E&S plan
requirements
Licensed professional must be present for critical stages
of construction and must provide certification with NOT
PCSM plan must include a riparian forest buffer
management plan (when applicable)
General Requirments-102.11
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Establishes BMPs and design standards
References DEP Manuals
E&S Manual
 Added references for Stormwater BMP Manual,
Riparian Buffer Guidance, and PPC guidance
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Alternative design standards
Incorporated federal Effluent Limitation
Guidelines (ELGs) by reference
Riparian Buffers-102.14
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Project site located in
Special Protection (EV
or HQ) watershed
attaining use at the
time of application:
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No earth disturbance
within 150 of perennial
or intermittent river,
stream, creek, lake,
pond or reservoir.
Protect any existing
riparian buffer.
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Project site located in
Special Protection
watershed with impaired
waters (Category 4 or 5)
at time of application:
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Protect an existing
Riparian Forest Buffer.
Convert an existing
Riparian Buffer to a
Riparian Forest Buffer.
Establish a new Riparian
Forest Buffer.
Riparian Buffers-102.14
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Standard criteria on composition, width, zones,
Required as a PCSM buffer in special protection
watersheds
A number of exemptions and waivers are
included for special situations
Voluntary
Trading or offsetting provision
 Antidegradation for waters
other than special protection
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Temporary Stabilization-102.22
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If cessation will be at least 4 days, the site must
be stabilized
Temporary stabilization includes
Minimum uniform coverage of mulch and seed of
appropriate density to resist erosion
 An acceptable BMP which temporarily minimizes
accelerated erosion
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Permanent Stabilization-102.22
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Shall be done on final completion or completion
of any stage or phase
Immediate restoration of topsoil, seeded,
mulched and protected from accelerated erosion
Permanent stabilization
A minimum 70% uniform perennial vegetative cover
with density able to resist erosion
 An acceptable BMP which permanently minimizes
acceleration erosion and sedimentation
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Coordination with local government102.42, 102.43
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If a municipality or county issues building
permits or other permits and receives an
application for a project of 1 acre or greater,
they shall notify the CD or DEP within 5 days
A municipality or county may not issue a
building or other permit or approval until the
DEP or CD has issued/authorized the permit
for the project
Enforcement
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Actions that can be pursued include:
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Investigations and inspections; response to complaints;
orders; civil penalty proceedings; summary proceedings;
suspension, revocation, withholding, or denial of permits or
approvals; notices of violation; actions in court; other actions
authorized by law
DEP or CD can recover from the responsible party
costs and expenses incurred in taking actions
Person aggrieved by an action of a conservation district
shall request an informal hearing with DEP;
determination will be made within 30 days of the
request and may be appealed to the EHB
Other Related Activities
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NOI, NOT, Visual Inspection Form, Earth
Disturbance Inspection Form, etc.
Guidance documents
E&S Manual
 Riparian Buffer Guidance
 Trading/Offsetting-to be developed
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Questions?