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:
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:
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. 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 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.