On January 25, 2018, the U.S. Environmental Protection Agency (“USEPA”) issued guidance withdrawing the “once in always in” policy for the classification of major sources of hazardous air pollutants (“HAPs”) under section 112 of the Clean Air Act.  Under the new guidance, sources of HAPs previously classified as major sources may be reclassified as area sources when the facility limits its potential to emit below major source thresholds.

The guidance supersedes the “once in always in” policy that had been in place since May 1995, shortly after promulgation of the HAPs MACT rule.  Its rescission should provide incentive for HAPs reduction at facilities that are major sources by virtue of HAPs emissions.

The policy memorandum finds that the 1995 policy memorandum is contrary to the plain language of the Clean Air Act, which the current EPA interprets to not contain a time limit on when a facility emits or has the potential to emit HAPs in excess of regulatory thresholds.

USEPA intends to publish the memorandum in the Federal Register for comment but has commenced implementing it.  The EPA page addressing the policy can be found here: https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112-clean

 

Municipalities throughout Pennsylvania are in the process of implementing local stormwater ordinances and fees that will likely impact land development.  Recent changes to federal and state laws have forced municipalities to seek new funding sources, regulate businesses that have large areas of solid pavement and roofing (“impervious” areas), and limit stormwater impacts that occur from land development.  Businesses and developers should remain on the lookout for changes to local laws that will regulate stormwater, limit traditional land development, create quasi-governmental stormwater agencies (known as authorities), and impose stormwater fees.  Stakeholders should take advantage of opportunities to participate to limit any adverse impacts from these local government initiatives on their operations.  This article focuses specifically on Pennsylvania, but similar changes may be happening in municipalities throughout the country that are grappling with stormwater issues.

Businesses and land development within the borders of a regulated municipal separate storm sewer system (a system that has separate pipes to convey stormwater, known as an “MS4”) may be affected the most by local stormwater regulation, whether or not operations involve discharges into storm sewer pipes.  Municipalities regulated as MS4s have independent legal obligations related to stormwater management.  These obligations are implemented through their MS4 permits with the Pennsylvania Department of Environmental Protection (“DEP”).   An MS4’s compliance depends on land uses and practices of businesses within its borders.  One potential component of an MS4’s compliance is regulation of businesses and land development through ordinances.  For example, DEP requires minimum standards for stormwater controls in local ordinances and, to that end, has issued a model stormwater ordinance that MS4s are expected to implement, in some form, by September 30, 2022.  The permitting requirements are even more severe if the MS4 is within the Chesapeake Bay watershed or within an identified “impaired” watershed.

A list of the hundreds of regulated MS4s, by county, and their regulatory status is available on DEP’s website.  Businesses and developers within these listed municipalities, in particular, should be attentive to changes at the local level and take advantage of their opportunities to shape local laws to accommodate their current and future operations.  Below are some key points to consider.

Stormwater Authorities and Fees
Municipalities may now create stormwater authorities, which are separate local entities that have defined responsibilities such as stormwater planning, management, and implementation.  By law, stormwater authorities may generally impose “reasonable and uniform” rates.  A key point of contention at the local level will undoubtedly be whether rates imposed are “reasonable and uniform” based on the characteristics of the properties that are subject to the fees.

Fee structures vary widely from municipality to municipality.  The most simple is flat per-parcel fee. Another simple approach is the equivalent hydraulic area (EHA) approach, which features separate per-square footage rates for impervious area surfaces (parking lots and other paved surfaces) and pervious area surfaces (lawns, gardens, green rooftops).  Additionally, many municipalities may impose separate fees for non-residential and residential parcels, with residential properties typically charged a flat-fee, while non-residential properties pay more targeted fees designed to reflect each parcel’s total impervious area, such as a per-EHA rate. Typically, non-residential properties are subject to a broader range of fees based on higher variance in impervious surface areas among commercial and industrial parcels.  For example, a used car lot would likely pay more in stormwater fees than a hotel because used car lots cover a large swath of impervious pavement, while hotels would generally have a relatively smaller footprint of impervious area.

No matter how the municipality or authority structures its fees, the revenue generated from the fees may be used by MS4s to implement “best management practices” (“BMPs”) that control and reduce the discharge of stormwater, including sediment contributions (or “loadings”) to surface waters (sediment, or soil particles, is considered a pollutant).  BMPs can range from something as simple as more-frequent street cleaning, to something as burdensome as construction of retention basins and infiltration techniques.

Fee structures can (and should) include credit programs that reduce or eliminate fees for property owners who manage stormwater, such as by implementing their own BMPs.  A properly structured credit program will allow property owners to reduce the billed stormwater fees commensurate with reductions in stormwater runoff from the property due to implementation of BMPs.  Businesses should ensure that credit programs are considered and look for opportunities to implement BMPs that can result in credits and long-term cost savings.  Legal representation may be helpful to assist with proactive review of proposed stormwater programs in order to encourage development of fair and flexible stormwater fee structures.

Businesses and Development in the Chesapeake Bay Watershed
Businesses within the Chesapeake Bay watershed may be most affected by local regulation as MS4s attempt to meet more-stringent permit requirements in this region.  The Chesapeake Bay is considered “impaired” for sediment, nitrogen, and phosphorous.  Therefore, federal and state regulation have focused on these three pollutants and, in urban or developed areas, particularly sediment.  DEP permitting now requires MS4s in the Chesapeake Bay watershed to reduce sediment loadings to surface waters over the next several years and demonstrate those reductions (this is a new requirement for MS4 programs in Pennsylvania).  In turn, this means businesses and land development within the Chesapeake Bay watershed will be in the crosshairs for more local regulation through BMPs and fees.  Under DEP’s program, the amount of stormwater (or “volume”) is equivalent to “sediment” because higher volume results in stream scouring and stream bank erosion.  Businesses and developers may be forced to implement BMPs to reduce volumes discharged from properties where stormwater management was approved years or even decades ago.

Businesses and Development in Other “Impaired” Watersheds
Even beyond the Chesapeake Bay watershed, businesses and development within other, smaller watersheds throughout Pennsylvania that are considered “impaired” may be subject to additional local scrutiny for stormwater management.  MS4s are subject to additional permitting requirements similar to those for the Chesapeake Bay if they are located within certain smaller watersheds that are “impaired” for specific pollutants, including not only sediment, nitrogen, and phosphorous, but also pathogens, metals or acidity from abandoned mine drainage, and certain priority pollutants like polychlorinated biphenyls (“PCBs”) and pesticides.  In turn, this means the potential for more local regulation in MS4 municipalities that face these issues beyond the Chesapeake Bay watershed.

Opportunities to Participate and Cooperate
When municipalities propose ordinances, fees, BMPs, and other measures to regulate stormwater, stakeholders should take advantage of opportunities to be in the conversation.  Early participation in the development of fee structures, in particular, can ensure that assessments are fair, reasonable, and uniform and include credit programs for implementing desired controls, preventing the need for litigation later (which has been common for stormwater fees throughout the country).  This includes having you, legal counsel, or other representatives attend public meetings, file written comments, and organize businesses in similar situations to oppose any inequitable treatment.

In addition, MS4 municipalities may look to private landowners and businesses to help them implement BMPs on private property.  This can involve questions related to funding, design and construction, and long-term operation and maintenance (“O&M”) agreements to ensure ongoing effectiveness of BMPs.  It may also involve restrictions on property, such as through deed covenants or use restrictions.  The opportunity to work collaboratively with a municipality on such projects can be beneficial for stakeholders and help frame the outcome, resulting in a win-win if done properly.  These opportunities may also expand beyond the borders of a municipality and involve cooperation with regional and county-wide initiatives (e.g., in York County).

Conclusion
Businesses and developers must remain vigilant in tracking proposed local regulation of stormwater. Early participation by stakeholders or their representatives can reduce the regulatory burdens, present a positive community image, and result in savings in the long run.

Please look for this article in the upcoming January/February 2018 issue of Metropolitan Corporate Counsel!

After December 7, 2017, new Pennsylvania land development projects that disturb in total over an acre of land will require an individual National Pollutant Discharge Elimination System (“NPDES’) permit.  Although the Pennsylvania Department of Environmental Protection (“PaDEP”) missed the window to timely reauthorize General Permit PAG-02, it has administratively extended existing issued permits which have not expired and do not expire in the interim, until December 7, 2018.  PaDEP has also stated that it intends to reissue a final PAG-02 well before December 8, 2018, most likely by the spring of 2018.

Furthermore, by administratively extending the existing PAG-02, PaDEP enables any previously issued PAG-02 permit that will expire or require amendment after December 7, 2017, to be renewed or amended by Conservation Districts, provided the coverage area is not expanded and the renewal/amendment is applied for on or before December 7, 2017.  We caution, however, that only timely application for renewal will extend your existing PAG-02 beyond its expiration.

After December 7, 2017 (until PaDEP finalizes the PAG-02 reissue), all new or amended acre-plus construction activity stormwater permits must be individual NPDES permits. While individual permits are typically reviewed and issued by PaDEP, not Conservation Districts, PaDEP has indicated that if your project would have qualified for the PAG-02, you may submit the same information and fees and follow the same instructions for an individual permit application as you would have for a PAG-02 NOI (Form 3150-PM-BWEW0035), by checking the box for the “Individual” Permit Type. Similarly, if your NOI is pending and will not be issued by December 7, 2017, you should submit Form 3150-PM-BWEW0035, with the box for the “Individual” Permit Type checked.  Conservation Districts will conduct the entire review, with consultation with PaDEP as necessary, and will issue the individual permit.

However, if you do not anticipate beginning construction prior to the date PaDEP finalizes the PAG-02 reissue, you may submit your PAG-02 to your Conservation District and request that a review be conducted, but final action will be delayed until PaDEP completes the reissue.

Application for an individual permit would typically be published for comment (not simply the issuance). The permit itself may contain additional terms and conditions, and the full review would be performed by PaDEP. However, during this interim period, PaDEP has indicated that for new projects that would normally qualify for PAG-02 coverage, conservation districts will conduct the entire review (with consultation with PaDEP as necessary) and issue the permit. It further provides that the applicant may submit the same information and fees for an individual permit application as it would for a PAG-02 Notice of Intent, but make sure to check the box for “Individual” for Permit Type and follow the applicable instructions as if the applicant was submitting a PAG-02 NOI. Typically individual permits are reserved for projects in special protection waters and projects within an impaired watershed.

PaDEP has established a webpage for updated information on this “Construction Stormwater” Issue.  It may be accessed here.

If you have questions about construction stormwater permits in general or your project in particular, please contact either Scott A. Gould (717.237. 5304, sgould@mcneeslaw.com) or Steve Matzura (717.237.5276, smatzura@mcneeslaw.com).