Pennsylvania’s New Construction-Activities NPDES Permit Application Format for 2020 Drives A Greater Awareness of Site Contamination

In December 2019, the Pennsylvania Department of Environmental Protection (DEP) issued new application formats for its NPDES Permit for Discharges of Stormwater associated with Construction Activities. New packages for the General Permit PAG-02 and the Individual NPDES Permit were released, separating what was once a single application into two separate documents.  The new formats are generally seen as a welcome change, with simplified data fields and improved clarity.

The NPDES is a federal program which is administered in Pennsylvania by the DEP, and requires site developers and operators to apply for permit coverage for various projects activities that involve discharges that could potentially contain pollutants.  Included among these are construction activities that involve earth disturbances greater than one acre.  The specific goal of the NPDES Permit for Construction Activities is to implement controls on stormwater discharges while soils are exposed, and vulnerable to washout or erosion events that threaten downstream water resources.   Permit coverage is offered through a standard Individual Permit, which requires supplemental plans including an Erosion and Sediment Pollution Control (E&SPC) Plan, and a Post-Construction Stormwater Management (PCSM) Plan.

In addition to the Individual Permit, coverage under NPDES for Construction Activities in Pennsylvania is also offered through General Permit PAG-02, which has been pre-authorized between the USEPA and DEP.  PAG-02 provides General Permit coverage for construction projects that meet certain criteria to minimize the potential for uncontrolled discharges and off-site impacts.  If a project meets the specific criteria of PAG-02, it can be ‘registered’ under the General Permit.

Prior to the December 2019 revisions, regardless of whether or not a site was applicable under PAG-02, the permittee was required to complete a sizeable 29-page application package. Navigating the application could often be confusing, even for experienced engineers and consultants.  The unwieldy scope of the application rendered it difficult to discern what data elements were necessary for sites which met the conditions of PAG-02 from those that didn’t.

So, a separation of the document into two stand-alone applications made plenty of sense.  The new format of the PAG-02 application, or Notice of Intent (NOI), allows the applicant to make a clear and simple comparison of their project conditions to the applicability definitions of PAG-02, early in the paperwork sequence – on Page 2, in fact.  Presenting the PAG-02 applicability up front, in clear and definitive terms, is designed to reduce confusion and frustration throughout the process.   The Eligibility Information section in the PAG-02 NOI is neatly comprised of a series of nine ‘True or False’ statements, aimed at verifying that the proposed activities may be suitably covered under the PAG-02 general permit conditions.

Despite the welcome format change and this promise of simplification, however, the PAG-02 is raising some important questions – and some engineers’ stress levels – in response to two of the eligibility questions that deal with site contamination.  Specifically, Eligibility Item 4 reads as follows:

‘Soils in the area of the earth disturbance are not contaminated at levels exceeding residential and non-residential medium-specific concentrations (MSCs)in 25 PA Code Chapter 250 at residential and non-residential construction sites, respectively, unless a site-specific standard has been met or evidence is provided of naturally-occurring contamination.  True/False’

Three cells down, Eligibility Item 7 presents the following:

‘Stormwater discharges will not occur that would contain toxic or hazardous pollutants…. pos[ing] a substantial present or future hazard to human health or the environment when discharged into surface waters. True/False’

The direct nature of the True/False statements serves a clear purpose that discerns whether or not the application truly fits the conditions of PAG-02.  It could also be presumed that an answer of ‘False’ to any of the nine items in the Eligibility section would render the project ineligible for the PAG-02 permit.  However, if a project is known to have soils that are contaminated, the PAG-02 Permit Instructions state that the answer to Item 4 can be still be ‘True’ if the areas of coverage under PAG-02 include only those areas that are not contaminated.  Nonetheless, if contaminated soils are located within the area to be disturbed, the applicant must apply for an Individual Permit for the entire project site.

It’s worth considering these PAG-02 Eligibility Items with a bit of context.  In most cases, the NPDES permit application is filled out by the project engineer, who is typically the most knowledgeable person with respect to the construction elements covered under NPDES. At the time that the NPDES permit application is being completed, the engineer has likely prepared an E&SPC Plan describing erosion controls during construction, and a PCSM Plan detailing the proposed stormwater management facilities and the hydrologic and hydraulic calculations behind those designs.  Assuming that the project engineer is not the same person (or firm) as the environmental consultant that performed a Phase I ESA or Phase II site investigation earlier in the project cycle, this engineer will not have first-hand knowledge of the conditions described in Eligibility Items 4 or 7.  Yet, they are faced with the statements in stark True/False format.  An incorrect response to either statement could unnecessarily expand the NPDES permit coverage to Individual status, or pose a potential liability for the client as they sign the application, directly below the wording: I certify under penalty of law….that the information submitted is, to the best of my knowledge and belief, true, accurate, and complete.

By comparison, the prior version of the permit NPDES application did not address the eligibility conditions for PAG-02 as directly as it now does; the older form asked the applicant only to identify if any naturally-occurring geologic formations or soil conditions that may have the potential to cause pollution (usually there was none), and to state whether the site was in the process of being remediated under Act 2, Pennsylvania’s voluntary cleanup program.

The new application demands a greater awareness of any environmental studies that were performed on the site, and an understanding of what areas of the site could pose a contaminant concern.  Without such awareness, Eligibility Items 4 and 7 can be a stumbling block.  The new format also underscores the growing importance of early and thorough environmental due diligence in site development, and the management of site contaminant issues throughout all aspects of the development process.

If an ESA hasn’t been performed for years, or if construction is proposed on a portion of a site where due diligence has never been conducted, it’s in the developer’s best interest to get those areas thoroughly evaluated for all potential sources of contamination.  If contamination is found, its nature and extent should be characterized so that a plan for remediation can be initiated early in the project lifecycle – and well before those areas are submitted for coverage under an NPDES permit.   It’s also critically important that the environmental consultant’s data is effectively communicated with the project engineer and their team, so that any problems that arise through NPDES permitting can be addressed to satisfy the conditions of coverage.  This certainly won’t guarantee that a site will meet the eligibility of PAG-02, but it will certainly allow for a smoother permitting process – no matter what level of NPDES permit applies to a project.

David S. Coyne, QEP, is Principal and COO of Liberty Environmental, Inc. and oversees the firm’s Due Diligence and Natural Resources practice areas.  He can be reached at dcoyne@libertyenviro.com.